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. Porkchop,

    The issue isn’t a per se test. The issue is the definition that is inherently religious in nature and ignores the essentially contractual interests and relationship. There is no way you can use a religiously based definition of marriage as the sole province of the heterosexual and not be advancing or prohibiting one religious dogma over another. It is a de facto test.

    “So, you still have to look elsewhere for such a right.”

    No, I don’t. The right exists in the state of nature as by either Rousseau or Hobbes definition the state of nature is a lawless state. The tyranny of the strong over the weak expressed in Hobbes does not negate that two people giving valid consent for exchange of mutual value only requires two people to agree – their gender is irrelevant. Of course, under a state of nature, should one of the parties break their promise there is no enforcement but self-help. That is where government comes into play like they do in the enforcement of any contract.

    Asking for any other “source” for the right begs the question there is another source for rights. There isn’t under the social compact unless the form of government is a tyrannical one that views citizens as property and therefore in an exclusive position to grant rights rather than recognize and protect the inherent rights of citizens or agree to limit them for mutual benefit. The entire premise of our social compact is based in part on the usurpation of tyranny. There is no other source of rights but those inherent in the state of nature is how our form of government works per the 9th Amendment. Or are you saying that in a state of lawlessness that two people of the same sex would never pair up? Science indicates otherwise as homosexuality is not just a behavior in humans but in animal species as well. The last time I checked, they don’t have government.

    Also note, I used a lower case “f” on fundamentalist to denote socially retrograde practices in general. I could have just as easily put in “fundamentalist Islam” and the sentence has the same meaning. I questioned using “Christian” in writing that sentence. Perhaps I should have left it out, however, as you note, those making the biggest noise are indeed Fundamentalist Christians. In the end, that’s a distinction without a difference as restricting marriage to heterosexuals only is using a religious definition under various dogmas, not a contractual definition, and in the process oppressing a minority for no mutual societal benefit as it eliminates no specific harm while creating very specific harms in said minority.

    The excessive entanglement argument follows naturally once you realize a religious definition for marriage creates a de facto test. You have no issue with the first prong, but only failure of two prongs is required for a Lemon violation. It’s a strong argument. You’ll have to go much further to convince me it’s wrong.

  2. Gene H.

    As a libertarian of sorts, I agree that the government really has no business getting involved in marriage — period. I agree with your position philosophically. I really don’t understand the purported “harm” that my wife or I might suffer because two gay men get married. I really don’t see why we should be concerned about it — no one proposes (no pun intended) that unwilling participants be required to marry someone of their own gender.

    That said, I think your First Amendment argument goes out on a long, long limb, particularly, the second and third points of your iteration of the Lemon test. The fact that fundamentalist Christians are particularly noisy on the issue of same sex marriage does not mean that the government is excessively involved in religion, as in the case of, say, mandatory school prayer, or that the government is advancing or inhibiting religion. Non-religious people get married all the time, often without religious ceremonies at all. It would be different if there were some religious test for marriage, but there isn’t. The fact that the law’s effect parallels the result desired by those with fundamentalist religious beliefs simply isn’t enough.

    So, you still have to look elsewhere for such a right.

    By the way, which state of nature are you referring to? Rousseau’s? Or Hobbes’ “war of all against all”? In the latter, the minority generally loses.

    It’s also a mistake to describe all of those religious people who oppose same sex marriage as fundamentalists. “Fundamentalism” is an evangelical protestant phenomenon, but the Roman Catholic Church has been ardently opposed to homosexual behavior for the last couple thousand years, give or take a century or two. I’m old enough to remember when protestants still spent a lot of time worrying about the Catholic threat to the American way of life. I find it odd and bizarrely amusing that there is such community of belief among fundamentalists and Catholics these days.

  3. Randy,
    Many rights have been there since time immemorial, but the hand of lawmakers and religion–sometimes you cannot tell the difference–have intervened to violate those rights. The Egyptians kept the Jews in slavery for a long time. Because they did so did not make it right. The people finally had enough and rebelled. Same with women voting and the right for interracial couples to marry. Lawmakers sometimes have to be prodded to bring laws into line with what is moral and what is a divine right since day one. I find it laughable that religious people like timmy believe that you have to answer to a Higher Power in order to make the right moral choices. Tell that to all the people who were burned at the stake. Those who performed such acts under the name of religion had a strange sense of ethics. Either you have an ethical and moral code or you don’t.

    What we have going on is a concerted effort to REMOVE civil and legal rights from people who have every moral right to exercise them. I don’t thing gay people need to be told not to complain when there is an effort to make them 3/5 of a citizen. I believe we have heard that before. It is a path already trod, and not one we need to revisit using the excuse of protecting “traditional marriage,” whatever the hell that is.

    I have a feeling at least part of the foregoing is incomprehensible.Just ignore that part. I have been up twenty hours for the third day in a row, and need to be up at 4:30 again in the morning. So, bonsoir.

  4. One need look no further than the essential nature of marriage: a promise between two parties given with valid consent in exchange for something of value (specifically a counter-promise). State involvement and valid interest in marriage is no deeper than that. It can’t be. The 1st Amendment prohibits the endorsement of one religion over another with the Free Exercise and Establishment Clauses. To impose any religious definition of marriage will not pass the Lemon test.

    1. The government’s action must have a secular legislative purpose;

    There is no secular purpose but oppression of a minority in denying homosexual couples the same legal protections and obligations heterosexuals enjoy. No one has yet to name a specific harm done to anyone by recognizing these rights formally, yet there is a long list of grievances and actual harms created by denying them.

    2. The government’s action must not have the primary effect of either advancing or inhibiting religion;

    To narrowly define marriage as a strictly heterosexual relation is primarily advancing a fundamentalist view of Christianity and inhibiting more liberal and progressive forms of religious and secular practice. This runs afoul of the 1st Amendment on its face as well as the 14th Amendment’s Due Process and Equal Protection Clauses which is relevant despite not being formally part of a Lemon analysis.

    3. The government’s action must not result in an “excessive government entanglement” with religion.

    The only way to avoid excessive entanglement is to recognize the equal rights the LGBTQ community and their supporters are demanding. Any other solution puts government in the role of an enforcer of religious dogma and there is hardly any entanglement more excessive than that.

    In the state of nature, one is free to make these promises with whomever they wish. The right exists inherently. How we as a society choose to limit it is the question. No minority in our history has ever gained their inherent rights without demanding they be recognized.

    The only valid exercise of governmental power here is as they relate to the contractual nature of marriage.

  5. Randyjet,

    There are two separate issues here, conscription and gay marriage.

    The right not to be conscripted, if it existed in principle, was done away with when the Constitution was ratified. That’s the point of the “raise and support armies” clause of the Constitution. See The Selective Service Cases at the link provided by Gene H.

    As to the lack of a pre-existing right to gay marriage at common law, I think you are right, but not for the reasons you suggest. Sodomy was criminalized formally in England under Henry VIII with the Buggery Act of 1533. I think that it is fair to surmise that if two males who had sex were subject to capital punishment (and they were until 1861), it is pretty unlikely that the common law would recognize a marriage between them. Given the strong condemnation of homosexuality in the Christian church from antiquity, it is pretty unlikely that the church (which was in charge of marriage) would have married them anyway. It is not a great leap, I think, to conclude that it would not have married two women, either.

    In order to find a right to gay marriage, one has to look elsewhere.

  6. Now if you’ll pardon me, I have guests arriving shortly and I’m trying to get them fed and out the door before “Game of Thrones” comes on.

  7. “marriage is a social and legal construct which is granted by the state”

    Really. Marriage is actually a commitment between two people to love and care for one another and that can happen regardless of there being laws or not.

    You just don’t get that rights are inherent, do you, Randy?

    And that absolute freedoms are the state of nature and that we retain those rights until society agrees that we sacrifice them for mutual benefit.

    There is no such thing as a right granted by the state as they apply to natural (i.e. flesh and blood) citizens.

    That is the nature of the 9th Amendment and the social compact, Randy.

    Our society taking this long to address the issue of gay marriage does not mean that the right does not exist, only that we are tardy in addressing it.

    To believe otherwise is to either believe a fairy tale version of jurisprudence or a tacit endorsement of authoritarianism which is an anathema to democracy and any form of government that values freedom.

    The fact of the matter is that your definition of marriage is religious. Don’t b*tch to me that you aren’t religious either. That’s irrelevant to the fact your definition of marriage as strictly heterosexual only and that is strictly a fundamentalist Christian point of view. The 1st Amendment prohibits using the force of law to force your (yes – your) religious views on others using the force of law. You can be a bigot all you want, that is your choice, but you cannot force your bigotry on others using the force of law under both the 1st and 14th Amendments. Again, if you have a problem with homosexual marriage? Don’t marry one. Problem solved. The recognition of the right for homosexuals to marry isn’t going to force you to like or participate in it or turn you yourself gay. You need to afford others the same right you enjoy and stay out of their bedrooms and interpersonal relationships. Whether you will or not is doubtful.

    What is being argued for here is a further restriction of a right retained, not an expansion of a right granted.

    That is how rights and laws work under the social compact model of law. End of discussion. Disagree all you like. It still won’t make you right as a matter of fact.

    If that bothers you?

    Too bad.

    Kinda sad too that you’re apparently so insecure in your own sexuality that you want to oppress others. You’re a grown man acting like a sexually immature and insecure teenager. Get with it, man. If you’re not a homosexual? This question at bar has zero impact on your life. Nada. Other than you’re offended by it all. Guess what? You don’t have a right not to be offended. Offense is a subjective (and usually emotional) reaction. It’s the only thing in this situation you have any control over, however.

    So given that this is going to happen probably sooner rather than later, your options are to go around being mad and hurt about it or accept that what others do in their pair bonding – so long as they are of majority and otherwise capable of granting valid consent – is simply none of your business.

  8. randyjet,

    the Supreme Court ruled on that back in 1918. In case you missed the link, here it is again.


    This is a landmark case, and it was decided by a 9-0 vote of the Court. The decision was handed down by Chief Justice White, who said, among other things, “As the mind cannot conceive an army without the men to compose it, on the face of the Constitution the objection that it does not give power to provide for such men would seem to be too frivolous for further notice.”

    This opinion is the result of combining several cases up for appeal to the Court. The relatively brief opinion neatly dissects all the points of appeal.

    1. OS I have absolutely no quibble with the draft since I was personally subject to it and volunteered for military service anyway. The problem is that in trying to understand Gene H position, what I gather the assertion is that all US citizens have certain inherent rights which can sometimes be taken away for the state purposes.Then in accordance with inherent rights that these exist no matter that they have never been used or even allowed. such as in the case of womens franchise or gay marriage. It is rather strange that one could state that gay marriage has existed as a right for 237 years, but only until recently has been allowed in some states. Then I guess that women had the right to vote for144 years, but could not do so until 1920 in most states. Having a right that cannot be legally exercised would lead most folks to conclude that such rights did not exist at all. This also leads to the situation that all one has to do for some “rights” is to declare that right, and even if explicitly denied, it makes no difference.

  9. Just because the Declaration isn’t part of our legal code does not mean it does not inform the Constitution.

    Well if that is the case and your previous assertions that our rights derive not from the government and our laws, but inherent rights, then you have to still explain the justification for the military draft. That takes away, life, liberty and the pursuit of happiness, unless you enjoy getting shot at and killing people.

    In a previous post you stated that in a state of nature one could marry any person and you have that right. But unfortunately in a state of nature there are no laws and marriage is a social and legal construct which is granted by the state for its own purposes as well as that of the individuals involved

    . What is being argued for here is a further restriction of a right retained, not an expansion of a right granted.

    The law had never allowed gay marriage ever, so how is that a restriction since it never existed before in our law? You could say the same thing about women’s right to vote too. So there should be no need for the 19th amendment either. Were the founders and writers of the Constitution remiss in leaving women out and denying them their inalienable rights? They most certainly did NOT think so since they all supported male only franchise. So the founders did not know what they were doing then according to you and your conception of US law.

  10. ARE:
    The few states which recognize common law marriage only recognize them between different-sex partners who are eligible to marry. The operant words are eligible to marry. Each of these states have different controlling statutes for what constitutes a common law marriage but the one thing all have in common is none of them recognize same sex unions of any kind.

    District of Columbia
    Georgia (if created before 1/1/97)
    Idaho (if created before 1/1/96)
    New Hampshire (for inheritance purposes only)
    New Mexico
    Ohio (if created before 10/10/91)
    Oklahoma (possibly only if created before 11/1/98. There are legal questions still unanswered as to whether common law marriages formed in that state after 11/1/98 will be recognized.)
    Pennsylvania (if created before 1/1/05)
    Rhode Island
    South Carolina

  11. You asking me to prove a negative is still funny, Randy.

    You’re simply wrong about the nature of rights and what our Constitution does and does not do.


    If you don’t approve of gay marriage? Don’t marry one. Problem solved.

  12. The draft was ruled constitutional back in 1918 by the SCOTUS:
    Selective Draft Law Cases, 245 US 366 (1918)

  13. Randyjet,

    The authority for conscription is derived from Congress’ constitutional authority to “raise and support armies.” Various challenges to the draft have been raised over the years, and all have lost, with the limited exception that conscientious objectors cannot be required to bear arms in combat (but they can be required to engage in support services).

    The draft has nothing to do with the issues you raise. “The right to be let alone” does not limit Congress’ power to impose conscription.

  14. Bron,

    It’s not understanding the basics of a given subject that usually trip people up the most.

  15. Randy,

    Just because the Declaration isn’t part of our legal code does not mean it does not inform the Constitution. Tyranny is a form of authoritarian oppression. Our government was founded on the usurpation of tyranny and the prevention of tyranny (which goes to show how far down the authoritarian rabbit hole we’ve fallen since our founding, but I digress). The rest of what you say is mostly either gibberish or unrelated to the right at hand.

    But please, gyrate some more.

    The SHOUTING is a nice touch.

    It really conveys the essence of your frustration at simply not knowing what you are talking about and the jurisprudence interfering with your desired (and prime facie oppressive) outcome.

    1. Gene H since you are a lawyer and admitted that in theory at least gay common law marriage might exist, you can put it to the test. Find some gay couple in a common law state and see if they can be denied some rights granted to ordinary common law couples. if they are, then you could file suit to try and enfoce their rights.

  16. ARE:

    “it is the police power of the states that is used to define marriage.” [quoting me.]

    “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..”

    The “police power” in constitutional law refers to the general power of the state governments to regulate behavior. It does not refer to the authority of a police officer to arrest someone for a specific action, although the authority to make an arrest is derived from the “police power”. The states have a general police power, limited only by constitutional constraints, such as guarantee of a republican form of government, the Fourteenth amendment, and the parts of the bill of rights applicable to the states through incorporation in the Fourteenth Amendment. The federal government does not have a general police power, as I said above.

    “[A]t 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.”

    Wow, have you got your history backward.

    First, the word “progressive” did not carry the same meaning in the early 1900’s as it does today.

    Second, Teddy Roosevelt ran under the Progressive Party banner (his own creation) in 1912, not 1916. It was a four-way race between incumbent Republican President William Howard Taft, Democrat Woodrow Wilson, “Progressive” Teddy Roosevelt, and __Socialist__ Eugene V. Debs. Taft was from the conservative wing of the Republican Party; Roosevelt was from the progressive wing of the Republican Party. Debs got 6% of the vote. Roosevelt got 27+%; Taft got slightly more than 23%. Wilson won the election with 41+ percent of the popular vote and a landslide in the electoral college. A few additional candidates split the rest of popular vote

    Third, if the republicans were the “progressive party” in 1912, then there would have been no need for the formation of the Progressive Party so that Roosevelt could challenge the Republican nominee. The main ideological differences between conservative and progressive Republicans involved among other things, tariffs, protection of national parks, antitrust enforcement, and regulation of child labor.

    After 1912, the Progressive Party declined steadily and by 1918, almost all Congressional “Progressives” had rejoined the Republican party. In 1916, Roosevelt refused to run on the Progressive ticket and endorsed Republican compromise candidate Charles Evans Hughes, who lost to Wilson. That was the year Miss Rankin was first elected. Running as a Republican that year hardly made her a radical — except for the then somewhat radical idea of women’s suffrage, which she supported. After that election, the conservative Taft wing dominated the Republican party for decades. (The Progressive Party of 1924 was a new, different party created by Robert LaFollette to run against Republican Calvin Coolidge and Democrat John W. Davis.) Most former “small-p” progressives (that is, rank-and-file supporters of the Progressive Party) became Democrats in the 1930’s and supported the New Deal. Again, running for office as a Republican in 1940 was hardly an indicium of radicalism on Miss Rankin’s part. If anything, it was the opposite.

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