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. Cooper was fighting a losing battle 5 minutes into the hearing, and he knew it. It is clear you can’t have it both ways, either it is ok to discriminate against gay people, or you simply cannot deny them a right every other person has already.

    “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.”


  2. lol

    Sorry, raff. I couldn’t resist the easy joke. I owe you a beer (or your drink of choice) for that one. :mrgreen:

  3. raff,

    “And yes, while I may be old, I was not around during Lincoln’s time.”

    I coulda swore that was a “Tippecanoe and Tyler Too” t-shirt you’re wearing in that picture. 😀

  4. ARE,
    I have read the Bill of Rights and I even saw Lincoln, but the states rights argument was one of the biggest arguments for keeping slavery in place in the South. Are you suggesting that States have the right to over ride Federal law or the Constitution under the states rights or tenth amendment argument? And yes, while I may be old, I was not around during Lincoln’s time.

    1. rafflaw your point was that slavery was a states right even after the 13th amendment. We passed that amendment to outlaw slavery, and if you think that same sex marriage should be a right, then I would think that another amendment would be appropriate.

      I also have to laugh at the gay marriage rights folks in their argument on gay marriage insisting on STATES RIGHTS of all things. I recall that was the same argument used against the Civil rights legislation.

  5. ARE:

    “There is ample precedent for using Federal law to compel states to establish uniform laws such as the legal drinking age, the lapsed 55 mph speed limit among others. So unless you disagree with those laws, DOMA is quite correct too.”

    Actually, no. The mechanism was different. The federal government coerced the states to change their speed limits and drinking ages by threatening to withhold the federal share of highway funding if the states did not do so. The reason for coercion, as opposed to fiat, was that the federal government had (and has) no power to require such changes by fiat. States are still free to reject funding, raise speed limits, and lower the drinking age.

    DOMA is different. Where, prior to the passage of DOMA, federal law with perhaps a few exceptions, looked to state law to determine whether two people were married, because historically, it is the police power of the states that is used to define marriage. (The federal government has no general police power; all federal powers must be derived from the Constitution, either enumerated or implied through the Necessary and Proper Clause.) DOMA repudiated that approach when it appeared that one state (Hawaii) might deviate from the previously accepted definition of marriage. At least a part of the federalism argument is that the federal government intrudes on the states’ police power when it adopts a law that limits the the effect of the states’ police power.

    1. it is the police power of the states that is used to define marriage.

      I fail to see how the police get involved or the police power since Loving and Lawrence put the stake into any possiblity of arrest for adult consensual sexual acts. DOMA simply does what the laws withholding Federal funds from states which do not conform to Federal mandates. Thus the Federal government has every legal right to say who may or may not get SS benefits, child welfare supports, etc..

  6. ARE,

    The ban on polygamy isn’t based on religious preference. It’s based on the fact bigamy has been a crime at English common law – and that is where our common law derives – since the time of James I. That and that while legislating religious belief is forbidden by the 1st, legislation of religious practice is not. You cannot have polygamy without bigamy. See Reynolds v. U.S..

    1. Gene H as I recall, Utah territory had legalized polygamy, thus polygamy has legal pedigree in US law. It was only outlawed after the Mormon church had a revelation that it was no longer permitted in order to be admitted to the union as a state.

  7. Why now, who cares…. It’s really about consenting adults…. But if the dang fool can’t answer a question on point by the Justice…. What does that say about the fool…l

  8. When marriage turns upon the “feelings” of the adults, then marriage cannot be controlled by number . . .

  9. ARE:

    “Gene H then all of the arguments you present apply with equal force to polygamy too. So your statement and assertion is that the state has no right to define marriage as it sees fit and that the decision to marry whoever should be left to the parties themselves, absent any compelling state interest.”

    You say that like it’s a bad thing. 🙂

    Government involvement in marriage is a relatively late historical development. In the United States, there were no state-issued marriage licenses until the mid-19th century; as of the 1920’s, only 38 of the then-48 states required a marriage license. Such licenses were used, among other things (or perhaps primarily, at the outset), to facilitate the prohibition of miscegenation.


  10. If marriage is about procreation, then is the marriage void (or voidable) after a tubal ligation or vasectomy? Kind of like being over 55, but younger, I guess.

  11. Good article Nal. It is comforting to know that the state is protecting my sperm.
    Gene you are spot on about the states right cop out. If we still allowed states to make these kinds of decisions on a state by state basis, we would still have slavery.

    1. rafflaw, I guess you forgot to read past the Bill of Rights or did not see the movie LINCOLN. We passed an amendment to get rid of slavery, and Lincoln himself knew that his powers as President did NOT allow him to abolish slavery in the loyal states which still had it. I guess that had YOU been around or President at the time, you would have had the President unilaterally abolish slavery, or had the SCOTUS do it. Of course, those courses would have been wildly unConstitutional, but I guess that is of little concern to those who would wish to make law on their own, or have the courts do it for them.

      We did have the SCOTUS effectively overturn the 14th Amendment with Plesy vs Ferguson, so I suppose you might have some precedent for making up new law as the SCOTUS would like it to be.

  12. Frankly,

    You are touching on the very issue the “state’s decision” argument fails upon: the Full Faith & Credit argument.

  13. Erb. If the states handle it then how do you deal with a married couple from one state moving to a state their marriage is not allowed? That creates more problems than it solves.

    If the court ruled that a black man had any right that a white man must honor would that be judicial fiat also?

    1. Frankly we already have that situation when the age limits for age of consent and consanguinity are different in many states. We can handle that the way we do now.

      Also if you wish to state that Federal laws should trump state laws on this matter, then you will have to agree that DOMA is quite legal and correct then. There is ample precedent for using Federal law to compel states to establish uniform laws such as the legal drinking age, the lapsed 55 mph speed limit among others. So unless you disagree with those laws, DOMA is quite correct too.


    I know that paranoic alarms are my specialty.

    Do you use Gmail, then you certainly have noticed how they changed designs in recent days and now it forces you to use their new version.
    If you click on Google ads, they can take over your system by inserting a virus in the picture data.

    I suspect that the “Government” lies behind this. We protest NSA and don’t really KNOW what they are doing.
    I quickly reacted to the new GMAIL version and tried to remove it using all the resources in the windows system. Nothing worked.
    I am using the new version of GMAIL It is better than the old, so the problem is not that.

    It has begun interfering with my logging into other systems, I got in here
    today by using the host system here to get in using their login.
    Same problem getting into and commenting editorials in my home town newspapers. I am not saying that Google is controlling them. Just that Google is controlling my laptop.
    Like I said, all this began about 4-5 days ago.

    Apple? Apple is also forced to “cooperate” with the Federales.
    If you are an Apple system user, you are already controlled by Apple,
    So, if their mail system changed, or if Apple required new apps, etc., then how would you know.

  15. Slavery used to be legal too, ARE.

    Leaving it to the states is a cop out argument. Equal rights and equal protection are Federal issues under the 14th. And by your own logic, the state would have to prove there is a compelling state interest in homosexual orientation in order to ban it. There is simply no compelling legal state interest in the sexual orientation or gender of a married couple. The societal harm in this instance is the oppression of a minority based on no specific harm and unsupportable by any legal Constitutionally based argument under the terms of the 1st and 14th Amendments. Homosexual marriage, so long as the parties are of age of majority and can otherwise grant valid consent harms no one. Depriving people of their rights as a couple and individually that heterosexual couples enjoy under secular civil law in their relationship? Is simply wrong and on its face a violation of the 14th Amendment.

    1. Gene H then all of the arguments you present apply with equal force to polygamy too. So your statement and assertion is that the state has no right to define marriage as it sees fit and that the decision to marry whoever should be left to the parties themselves, absent any compelling state interest.

  16. ccrider 27 asks the question/makes the point. It is beyond me why these people cannot understand the concept of equality.

  17. Every question but the appropriate one: Does it violate the equal protection clause in the Constitution or not? That’s it, nothing more.

    We no longer have a Supreme Court. We have nothing but a WhXre Court serving only the interests of the 1%.

    They are all pathetic. They are illegitimate. And they are trivial.

    They have no valid function.

  18. ROFL. Seems even the attorney arguing before the Supreme Court can’t answer the questions that Karen and Timmy can’t answer. Can it be that there are no real, rational arguments in opposition to same sex marriage?

    1. The Loving decision only specified one man/one woman marriage as being a right. Gay marriage had not even been THOUGHT of back then, and the same SCOTUS let stand anti-homosexual law. So it is NOT the state burden to prove that same sex marriage is harmful or that banning it is unConstitutional. As Kagan pointed out if a state law mandated that only fertile couples could marry, such a law would indeed be unConstitutional and it would indeed be unwarranted discrimination if the state law mandated that one prove ones heterosexuality before gettting a marriage license. Then the state would have to prove that there is a compelling state interest in mandating proof of heterosexualtiy before allowing gays to marry a person of the opposite sex. Such a test would make no sense and would indeed be unConstitutional discrimination, just as interracial bans had to prove some societal harm.

      If one wants to allow same sex marriage, the place to do that is the state legislature, not by judicial fiat. One has to remember that such stretching of the law can and will eventually be used against you at some point in the future.

  19. The real question in my mind is the one does the state have the right to define marriage as it sees fit? In Loving the SCOTUS said that only one man/one woman marriage was a right and that absent some compelling state interest such as consanguinity or age of consent, it must be open to all adults. It did NOT say that same sex marriage is a right contingent on a compelling state interest to ban such. I rather liked Kagan’s question on the age question since it shows that gays are NOT discriminated against. They have the same right to marriage as older folks and indeed millions of gays have gotten married without restriction to another person of the opposite sex. If there were a requirement that one be hetersosexual and prove it before getting a marriage license, THEN such a law would be unConstitutional since you would have to show some compelling state interest in banning gays from marrying a person of the opposite sex. Just as the Loving decision showed that the state has to have a compelling state interest in banning interracial marriage.

    Redefining the traditional marriage definition is not part of what the court should do. If New York wishes to redefine marriage as encompassing ALL adults and permits same sex marriage, they have that right. It also has to follow then that polygamy will fall under the same rule if the justices rule for the state not banning same sex marriages. There are some states such as Utah which may well decide that polygamy is part of marriage and that the state has to show a compelling interest in banning it. In fact, polygamy has been part of traditonal marriage FAR longer than gay marriage. Also, banning polygamy tramples on the religious freedom of Muslims, some Moromons, and others.

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