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. The Declaration is NOT part of our legal code, the Constitution is. Also, then I wonder how you interpret the military draft. Is that not a gross violation of the right to LIFE? Then we have the early Congress mandating that all male citizens keep and bear arms in the militia. That also infringes on ones right to be left alone in ones life. If all that is permissible under our Constitution, then how does that mean that states cannot ban gay marriage since taking ones life away by legislation is a greater violation of ones right to life. You cannot get more fundamental than that. All other rights pale in that comparison, and even the Mass Supreme Court in their ruling on gay marriage conceded that the state has the RIGHT to take away young men’s lives to serve the larger states interest.

  2. gENE h:

    there you go again, stating that pesky self evident doctrine that rights are man’s by his nature and do not come from government or other men (kings).

    I am surprised randyjet doesnt understand that.

  3. And if you think the Founders wanted to create an authoritarian form of government? You don’t understand the essential nature of our particular social compact which is found not just in the Constitution, but in the Declaration of Independence as well which is one big eloquent middle finger to the authoritarian regime of King George III.

  4. BTW, your interpretation of rights as being granted by the government?

    Is authoritarian to the core.

  5. “Gene H I see that your contention is that if the law does not ban something, it is allowed.”

    Again, the argument from silence. I said that rights are inherent. When a society is silent on an issue it does not mean prohibition or protection, merely silence.

    “So one must then say that common law gay marriage is also legal in those states that permit common law marriage. Is that a fair interpretation?”

    No. It’s a straw man. Silence on the issue means it is undecided, however, in theory the answer would be “yes” . . . unless society chooses to limit that right.

    “Then one should be able to find case law asserting that right in some court when a gay common law couple wish to claim their rights under your definition.”

    You know, asking me to prove a negative over and over again isn’t going to get you an answer any better than the first time you tried that tactic. Feel free to repeat yourself though. I like watching someone bang their head against a wall.

    “I have to say the law does indeed grant rights, othewise what is the point of the bill of rights?”

    To protect certain rights specifically. Apparently you have a problem understanding both the nature of the social compact and the Bill of Rights in the context of the 9th Amendment. The Bill of Rights was designed to protect certain rights explicitly, not as a grant of rights from the state. That would applying your backward understanding of the nature of rights. The Founders knew what they were doing and they knew what they were doing according to proper legal theory including the social compact model of law. If you don’t think they understood the law in this manner, then you clearly don’t understand the plain language of the 9th Amendment.

    Try again.

  6. Simple is a good word to describe your logic, Randy, but you are indeed asking me to prove a negative since you are arguing from silence in the first place. Silent means in this context saying or recording nothing on a particular subject.

    You still cannot escape that your entire premise is based on a backward definition of rights as being granted by the state when they are not. The function of law under the social compact is to restrict rights, not grant them. That is how all legal systems work regardless of whether the method of determining what rights and how to limit them is accomplished via democratic process, fiat, or some other method.

    It is funny though to watch someone have a desired conclusion that is unsupported by logic or fact contort themselves in a effort to reach that desired conclusion.

    It’s a lot like watching Scalia’s pretzel logic.

    Outcome determinism is a terrible thing.

    1. Gene H I see that your contention is that if the law does not ban something, it is allowed. So one must then say that common law gay marriage is also legal in those states that permit common law marriage. Is that a fair interpretation? Then one should be able to find case law asserting that right in some court when a gay common law couple wish to claim their rights under your definition.

      I have to say the law does indeed grant rights, othewise what is the point of the bill of rights?

  7. Sorry I’m late to the party on this important topic and the thread it’s produced.
    Good work Nal because it is important to get the flavor of the Judges line of questioning. My own feeling is that for once SCOTUS won’t punt and that the rulings will be enough to ensure the legitimacy of Gay marriage quite soon. One must note that in reality, despite political demagoguery this is neither a liberal, nor conservative issue, merely one of obvious human rights.

  8. A lot of the people supporting the Vote of The People in the California Propostion 8 case are thus supporting the Right of a Majority to suppress a Minority. If you transpose this scenario to Mississippi in 1964 they voters would have voted in a proposition or petition in favor of segregation now, segregation forever. A majority, whehter exprssed through a legislature or by a vote in a initiative petition, cannot trump, even with the support of Donald, an individual right which is recognized by the Constitution. There one must look to enumerated rights and then unenumerated rights such as privacy.

    JoeBob here at the marina, a human, says to the gay guy: Shake Up Dont Get Married. Well that doesnt address Prop 8. Joe Bob says he also believes in States Rights. He is against forced busing. With JoeBob there are certain code words that ring his bell.

  9. Also, your second question fails in that you are asking me to prove a negative.

    Try again.

    1. Gene H When Portland OR was issuing marriage licenses to same sex couples, the Oregon Supreme court ruled that marriage as stated in OR law only referred to opposite sex unions, even though the statute had NO mention of sex in it. Then we have the fools in Texas who decided to pass an amendment banning same sex marriage and civil unions. They were so broad in the language that they banned ALL marriages if you take the text literally. I can cite Barbara Radnovsky as sharing that opinion too. But as we all know in Texas, you cannot find a judge who would actually apply the law as written. Unfortunately, the law in Texas is rather fungible and is only of use as an advisory or guidelines. Politics trumps the law.

      As for asking you to prove a negative, I am just asking for any case law which allows for common law gay marriage if your contention about English common law is correct. THAT is not trying to prove a negative since it should be available if you are right. SIMPLE.

  10. “Gene H the reason English common law is silent on gay marriage is that the term “marriage” ONLY appled to heterosexual marriage,”

    Argumentum e Silentio (Fallacy of Argument From Silence) and pure supposition in support of outcome determinism and confirmation bias equates to multiple fails in logic.

    Try again.

  11. Jack Balkin:

    Supreme Court Arguments We’d Like to See:

    JUSTICE SCALIA: You — you’ve led me right into a question I was going to ask. . . . I’m curious, when -when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? . . .

    MR. OLSON: Well, according to your dissent in Lawrence v. Texas, the Court decided that issue in 2003.

  12. randyjet,
    True dat! I have no doubt Scalia is a very smart man. It is a shame he wastes all that intellect trying to circumvent doing the right thing in favor of being nothing more than a lap dog for the vested interests.

    I have much less confidence in Thomas’ intellect. As far as I can tell he is a potted plant who, like a venomous Triffid, only gets into motion when it is time to feed.

  13. English common law was silent on homosexual marriage whereas bigamy was a well defined crime.

    Specious reasoning.

    Also, rights are inherent and retained, not granted by the state. In the state of nature, you are free to marry whomever you wish with no restrictions. As a society, we’ve deemed it proper to limit that right in certain ways already: you cannot marry children, animals, within certain degrees of relation (in some jurisdictions) or inanimate objects. The 9th Amendment states “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” What is being argued for here is a further restriction of a right retained, not an expansion of a right granted.

    Your backward thinking about the nature of rights fuels your backward logic about this argument.

    Try again.

    1. Gene H the reason English common law is silent on gay marriage is that the term “marriage” ONLY appled to heterosexual marriage, just as in the Loving decision. The right of marriage only applied to heterosexual marriage since that same SCOTUS let stand laws that criminalized homosexual conduct. So it takes some delusional thinking to believe that Loving applies to gay marriage since it had not even been thought of or raised at the time.

      Then there are many states which recognize common law marriage, and if we are to believe your contention, then gay marriage already exists in those states NOW. I would be most interested in the case law on that where gay common law marriage is recognized. Somehow I doubt that you can find any, and thus your contention that English common law allows or is silent on gay marriage.

  14. ARE,
    Trying to get Scalia to be consistent on the law appears to be hard, until you realize he is perfectly consistent when applying his version of the law to the litigants themselves. Rich people and corporations good. Poor people, brown people, and other minorities not worth bothering with–unless they are multi-billionaires.

    1. OS You forgot one important constituency in Scalia’s pantheon of holy writ, the GOP in Bush vs Gore. I was astounded that such a proponent of states rights would jump in on the side of the Federal government deciding how the state would conduct its elections when there were more than adequate measures in the Constitution and settled law on this matter. Then we have Thomas who is his twin, angling for a good reason to simply phone in his part in SCOTUS procedings since he doesn’t ever speak or ask questions.

  15. Online petition wants Justice Antonin Scalia to recuse himself from gay-rights decisions
    By: Erin Sherbert
    SF Examiner Staff Writer

    An online petition began Tuesday to persuade U.S. Supreme Court Justice Antonin Scalia to recuse himself from deliberating on Proposition 8 over comments he made at the hearing.

    At one point during oral arguments in the case of California’s voter-approved ban on same-sex marriage, Scalia said, “When did it become unconstitutional to exclude homosexual couples from marriage?”

    After a few back-and-forths with Ted Olson, the attorney representing the plaintiffs, Scalia finally concluded, “How am I supposed to know how to decide a case, then, if you can’t give me a date when the 
Constitution changes?”

    The comments sparked a MoveOn.org petition to collect signatures from people who would like to see the notoriously conservative justice recuse himself from both the Prop. 8 and federal Defense of Marriage Act cases, the latter of which is being heard today.

    1. How about answering Scalia’s question instead of dodging it? I think that would be a better answer, and making that question is hardly grounds for recusal. I am struck at how reluctant most gay marriage proponents are to answer simple questions. One states that using English common law is reason to ban polygamy and restrict it from the arguments in favor of gay marriage, but then refuses to state how English common law relates to gay marriage. I assume that English common law does not recognize gay marriage as being a right. They do argue that the 14th applies and thus mandates gay marriage, but then refuse to apply that standard to polygamy and duck behind English common law. That is very inconsistent it seems to me.

      Then Scalia has no problem legislating from the bench in Citizens United, but cannot do the same in gay marriage. If he could stretch the law of corporate personhood to give companies all the human rights, he should not have a problem with gay marriage then. Of course, since there is a movement to amend the Constitution as a result of Citizens United, there may well be another movement to amend the Constitution to ban gay marriage. Since 40 states do not allow it, I would think that such an amendment could pass now. So for gay marriage proponents, I would think twice about getting what you wish for from the SCOTUS. Such an amendment would NOT have to go through the Senate either since it only requires two thirds of states to propose it and three fourths to approve it which they will have with 40 states.

  16. ARE,
    You may be right on the 19th not being necessary had the SCOTUS ruled. The problem is getting the right case in front of them, and then having a majority ruling. In some cases an Amendment, difficult as they are to get passed, is the quickest and easiest way. If it had not been for the 19th Amendment, I have no doubt that in a few jurisdictions, women would still be arrested for trying to vote.

    It may eventually come to that with the gay rights issue. On the other hand, the current Justices have to be aware of trends, and Roberts above all, does not want to be remembered as a Chief Justice who was on the wrong side of history.

    Finley Peter Dunne spoke through his comic character Mr. Dooley:
    “No matther whether th’ constitution follows h’ flag or not, th’ Supreme Coort follows th’ election returns”

    1. Porkchop, I should have looked up her bio first, and just off the top of my head I was wrong about the state. In any case, she was indeed a radical, and at that time, it was the GOP which was the progressive party like Teddy Roosevelt who ran on the Progressive Party ticket in 1916 when he was denied the GOP nomination. From further research I found she advocated nationalizing major industries, welfare, and other measures to assist the workers. She did not oppose the New Deal. She did hate FDR mainly because of his war preparations in 1940. She had some raw edges too.

      I am fully aware of how electoral votes are apportioned, and the point of womens franchise was to induce more women to move west. A young woman who wished to have full citizenship rights would find Washington state and Montana very attractive, and hopefully move there. Prior to that many of the women who lived in those states had moved west to mine the miners as their occupation. So making the vote available was a good inducement for attracting more women. You can take a very nice tour of underground Seattle which explains that part of settling the west.

  17. Why does anyone want to get married? Pressured into it. What if you had a law that said you can leave your estate to your best pal, your kids, your dog, and let any of them take half your pension or social security benefit when you croak. That would solve ts marriage apCray. Then we would not have to have all the trappings like bridal showers, meet the mother in law, dowery, preacher preacher I declare, and that that. We need to end marriage, not expand it. It is akin to slavery. Wife wife, bo bife, nanna fanna fo fife, fee figh mo mife, Wife. Yck. I say, hump em if ya gottem.

  18. AY,

    Interesting. An interesting chart too. And yet the issue of validity never really seems to come up in our very mobile society when it comes to family law even in states where the marriage can be considered invalid. They do the sensible thing (usually) and apply the law of the original jurisdiction. Conflict of laws in an interesting area of study in and of itself.

  19. ARE:

    “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.”

    No. Jeanette Rankin was a Republican from Montana. She was the first woman elected to the U.S. House of Representatives. Her statue is in Statuary Hall in the U.S. Capitol.

    In addition to her Republicanism and opposition to the New Deal, Miss Rankin was a pacifist and an isolationist. She voted against U.S. entry into World War I and lost her seat in the next election. She was reelected to Congress in 1940 and voted against U.S. entry into World War II, only to lose her seat again in 1942.

    She also participated in protests against the war in Vietnam in her later years. You may not like her principles, but Miss Rankin had them in spades. Radical? Perhaps. A socialist? Hardly.

    By the way, the number of voters in Wyoming (or elsewhere) was and is irrelevant to anything other than the cost of counting votes. Representation in Congress is based on population. It’s right there in the Constitution.

    You need to educate yourself.

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