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. AY,

    The states where first cousins can marry are:






    District of Columbia






    New Jersey

    New Mexico

    New York

    North Carolina*

    Rhode Island

    South Carolina




    *North Carolina- First cousin marriage is legal. Double cousin marriage is prohibited.

    1. Having lived in Kentucky, I am surprised that they do not allow first cousins to marry. It must be that they don’t bother enforcing the consanguinity laws since I have noticed some traits in their electorate that suggest massive inbreeding. The same can be said of West Virginia too, though I have not lived there.

  2. Gene,

    If I recall New Jersey is an exception to the law where first cousins can marry…. It may have changed….

  3. ARE,

    And I think that women… ALL women had the right to vote in Utah…. Before becoming a state… If I also recall…. A woman from Montana was elected to the House of Representatives…. After her husband died…. Even though she could not vote for herself…..legally that is Rankin is and was her name… Jeannie or something like that…

    1. anon, The person I believe you are refering to is Janette Rankin who was a radical socialist from Wyoming. Wyoming allowed women to vote so that they could have more votes in their electorate. One wonders too why the 19th amendment was needed since the 14th amendment clearly prohibits discrimination and according to the legal scholars here, all that was really needed was a SCOTUS ruling.

  4. ” Then all state laws that prohibit marriage between first cousins will have to be held unConstitutional too, since that is discrimination just as much as that for gays.”

    Fallacy of incomplete comparison. There is a valid public health reason for such restrictions where they exist, but no one has challenged these laws to my knowledge. That is probably due to the fact that other states will recognize these foreign jurisdiction marriages under FF&C and apply their laws equally and fairly should the marriage dissolve or other event happen that relate to normal secular civil and contractual rights that arise under the existing state laws.


  5. Randy,

    “Gene H just your say so does not make it so”

    That is true. Ipse dixit arguments are based in logical fallacy. Too bad for you my argument is based on legal precedent and a firm grasp of legal principle both of which I referenced, ergo, mine is not an ipse dixit argument.

    1. Well we shall see when the SCOTUS rules as to who or what reasoning is correct. I think that there is another question which will arise if gay marriage is held to be a right that cannot be abridged. Then all state laws that prohibit marriage between first cousins will have to be held unConstitutional too, since that is discrimination just as much as that for gays. So a state will have to prove the unproveable as to the rational means test for such. Then we will have to revisit age of consent laws too since they vary. So the SCOTUS can be charged with legislating marriage laws for all the states. I am sure that they will be very eager to do that. I hope Kagan and company have their calenders free.

  6. “Oh and english common law doesn’t mention we gay people because we weren’t invented until 1969.”


  7. “The equal protection does not apply to gay marriage since there is no test or law banning gays from marrying a person of the opposite sex.”

    No, but there are laws banning marriage to a same sex person. In fact, 31 states have amended their state constitutions to ban same sex couples from marrying either in toto or in part. You can see a detailed list here.

    The 14th applies.

    Like it not, this is going to happen if the U.S. Constitution still has any validity at all.

    1. Gene H just your say so does not make it so The equivalent case to Loving would be that any person who identified themselves as gay could not legally get married. That would be discrimination since the state has no compelling interest in banning gays from standard marriage as stated in state law.

      You cited English common law as being the reason for not allowing polygamy. I was wondering what English common law says about gay marriage too. Since I am not a lawyer, I don’t know. I also understand that one state, Louisiana does not use English common law. Is that correct? If so what would that mean vis a vis polygamy then? Then there is a question about if the states pass a Constitutional amendment against any state having gay marriage, can the SCOTUS overrule the amendment?

      1. Wow. Allowing blacks to marry whites by your definition changed the “definition” of marriage because they weren’t being prevented from marrying the black person of their choice before? Black people were allowed to marry before loving too, just not to white people. Your saying theres discrimination there? Mr. Erb I’m afraid your a bigot. Oh and english common law doesn’t mention we gay people because we weren’t invented until 1969.

  8. “The argument which has not been addressed is do the states have the right to define marriage and its conditions, privileges, etc.. ”

    And that is the Federalism argument.

    The counter argument is Equal Protection, which is a superior Constitutional claim on the merits. There is no Federal interest in the police power of the states as they apply to driver’s licenses and yet they are universally recognized as valid from one state to the next under FF&C. This is due in large part to most state requirements for a DL being generally the same and not on their face discriminatory as a matter of fact, but if they were, the Fed could assert jurisdiction under the Commerce Clause like they did in Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 (1964) where SCOTUS said Congress could use the Constitution’s Commerce Clause power to force private businesses to abide by the Civil Rights Act of 1964. Because Equal Protection is rooted in the 14th Amendment and it applies to the states, there is a valid Federal interest in state action. Invalidating state laws that discriminate against homosexuals would apply in a manner analogous to the arguments set forth in Loving v. Virginia, 388 U.S. 1 (1967) where miscegenation laws were found to be in conflict with both the Due Process and Equal Protection clauses of the 14th Amendment. This is the Supremacy Clause in action.

    1. The equal protection does not apply to gay marriage since there is no test or law banning gays from marrying a person of the opposite sex. If there were, THEN i would agree that it would be a violation of the 14th. The Virginia law DID ban interracial marriage between persons of the opposite sex. Thus the reasoning in Loving that the state must have a compelling state interest in banning such marriages. I think that Warren would be aghast at the use to which the Loving decision has led. At least Warren had the good sense to get a unanimous decision when the SCOTUS outlawed segregation. it is too bad that our current crop of judicial zealots have no such constraint, on just as divisive and a FAR less clear interpretation of the law.

      In FACT millions of gays have gotten married to persons of the opposite sex and I can cite some well known examples, such as Leonard Bernstein, and Huffington who fathered children. I would guess that their children are rather happy that gay marriage was not even thought of back then, otherwise they probably would not exist.

  9. Bettykath, you hit the nail on the head. There are no RATIONAL reasons, only personal hates.

  10. ARE,

    As I recall, accepting the common law was a condition of statehood and that bigamy was still a crime at common law at the time of Utah’s admission. Reynolds v. U.S. challenged that matter and lost.

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

    And equal protection, therefore equal rights, are a Federal matter.

    The Constitution applies to the states via the 14th Amendment.

    1. Gene H I have no problem at all about the 14th amendment applying the whole Constitutional rights to all the states. That is obvious. The argument which has not been addressed is do the states have the right to define marriage and its conditions, privileges, etc.. I think that they do, and that as long as one does not have to prove ones heterosexuality, gays can and millions of gays HAVE gotten married to persons of the opposite sex. The problem is that you think that just because some wish to redefine marriage that it is a right. The proper way to do this is to do as New York did. They have every right to change their definition of it.

      Then we might have the problem that an amendment might be passed making same sex marriage illegal throughout the US. Think that the SCOTUS can declare an amendment unConstitutional, as the SCOTUS basically did in Plesy vs Ferguson?

  11. We live at a marina and dogs dont eat oysters, raw or cooked. Except PorkinDog, who will eat anything.

  12. The “States Rights” phrase keeps getting mouthed by folks who wish to opposed some individual right. The best example is when the Klan comes out to lynch somebody for being black and the feds step in to stop the Lynching. The states righters are outraged that the federal government would intervene in a lynching.
    Liberty interests which are recognized as Constitutionally protected “liberty” interests cannot be stomped on by States. Jim Crow by any other name is still Jim Crow. If you want to outlaw the right of someone to live with a person of the same sex then amend the Constitution.

  13. bettykath,
    The South used and is still using the state’s right’s claims to try to keep Jim Crow in place.

  14. Cooper’s ducking and weaving reminds me of some folks who wander in here and won’t answer a direct question. “It should be illegal, because, um, well because I said so.”

    That kind of behavior reminds me of watching a dog trying to pick up and eat a raw oyster off the kitchen floor.

    1. OS MY dogs would have NO problem with anything on the kitchen floor! Even raw oysters.

  15. Bob K makes a valid point. There are on occasion valid assertions of state’s rights issues, but by in large they are usually asserted by nefarious people with nefarious purpose and the intent to deprive citizen’s of Constitutional rights.

  16. This is the exact wrong time to be arguing states’ rights, with voter suppression, “shoot anyone who scares you (everyone does),” and subjugation of women laws being enacted by Republican state legislatures.

    Oddly enough (sarcasm), it’s being invoked largely by the same slave states that invoked it in the 1860s. Guess they didn’t get pounded enough, last time. They seem to enjoy forced federal intervention.

    With few exceptions, “states rights” doctrines are used with evil intent.
    Note that I gave myself wiggle room with “largely,” and “with few exceptions.”

    With those caveats (see, I can fracture Latin as well as the next guy), let the whining begin…

  17. raff, I thought the states’ rights issue was the other way round, that the South objected to Northern states writing laws that were contrary to the federal law that fugitive slaves be returned to their “owners”. i.e. it was the Northern states exercising states’ rights. Slavery was legal, the Fugitive Slave law said fugitive slaves were the property of their southern owners and must be returned. Northern states wrote laws, as a state’s right, that contradicted the Fugitive Slave law.

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