JUSTICE SOTOMAYOR: Outside of the -­ outside of the marriage context, can you think of any other rational basis, reason, for a State using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision-making that the Government could make? Denying them a job, not granting them benefits of some sort, any other decision?

MR. COOPER: Your Honor, I cannot. I do not have any — anything to offer you in that regard. I think marriage is -­

JUSTICE SOTOMAYOR: All right. If that -­ if that is true, then why aren't they a class? If they're a class that makes any other discrimination improper, irrational, then why aren't we treating them as a class for this one thing? Are you saying that the interest of marriage is so much more compelling than any other interest as they could have?

MR. COOPER: No, Your Honor, we certainly are not. We — we are saying the interest in marriage and the — and the State 's interest and society's interest in what we have framed as responsible pro -­ procreation is — is vital, but at bottom, with respect to those interests, our submission is that same-sex couples and opposite-sex couples are simply not similarly situated.

But to come back to your precise question, I think, Justice Sotomayor, you're probing into whether or not sexual orientation ought to be viewed as a quasi-suspect or suspect class, and our position is that it does not qualify under this Court's standard and -­ and traditional tests for identifying suspectedness.

The — the class itself is — is quite amorphous. It defies consistent definition as — as the Plaintiffs' own experts were — were quite vivid on. It — it does not — it — it does not qualify as an accident of birth, immutability in that — in that sense.

Again, the Plaintiffs -­

JUSTICE SOTOMAYOR: So you — so what — I don't quite understand it. If you're not dealing with this as a class question, then why would you say that the Government is not free to discriminate against them?

MR. COOPER: Well, Your Honor, I would think that — that — I think it's a — it's a very different question whether or not the Government can proceed arbitrarily and irrationally with respect to any group of people, regardless of whether or not they qualify under this Court's traditional test for suspectedness.

And — and the hypothetical I understood you to be offering, I would submit would create — it would -­ unless there's something that — that is not occurring to me immediately, an arbitrary and capricious distinction among similarly situated individuals, that — that is not what we think is at the — at the root of the traditional definition of marriage.

JUSTICE KAGAN: Mr. Cooper, could I just understand your argument. In reading the briefs, it seems as though your principal argument is that same-sex and opposite — opposite-sex couples are not similarly situated because opposite-sex couples can procreate, same-sex couples cannot, and the State's principal interest in marriage is in regulating procreation. Is that basically correct?

MR. COOPER: I — Your Honor, that's the essential thrust of our — our position, yes.

JUSTICE KAGAN: Is — is there — so you have sort of a reason for not including same-sex couples. Is there any reason that you have for excluding them? 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. But, Your Honor, I -­

JUSTICE KAGAN: Well, could you explain that a little bit to me, just because I did not pick this up in your briefs.

What harm you see happening and when and how and — what — what harm to the institution of marriage or to opposite-sex couples, how does this cause and effect work?

MR. COOPER: Once again, I — I would reiterate that we don't believe that's the correct legal question before the Court, and that the correct question is whether or not redefining marriage to include same-sex couples would advance the interests of marriage as a -­

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.

MR. COOPER: No, Your Honor, no. I'm not conceding that.

JUSTICE KENNEDY: Well, but, then it — then it seems to me that you should have to address Justice Kagan's question.

MR. COOPER: Thank you, Justice Kennedy. I have two points to make on them.

The first one is this: 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.

But consider the California voter, in 2008, in the ballot booth, with the question before her whether or not this age-old bedrock social institution should be fundamentally redefined, and knowing that there's no way that she or anyone else could possibly know what the long-term implications of — of profound redefinition of a bedrock social institution would be. That is reason enough, Your Honor, that would hardly be irrational for that voter to say, I believe that this experiment, which is now only fairly four years old, even in Massachusetts, the oldest State that is conducting it, to say, I think it better for California to hit the pause button and await additional information from the jurisdictions where this experiment is still maturing.

JUSTICE BREYER: As long as you are on that, then I would like to ask you this: Assume you could distinguish California, suppose we accept your argument or accept Justice Scalia's version of your argument and that distinguishes California. Now, let's look at California. What precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as procreation of children that allowing sterile couples of different sexes to marry would not? I mean, there are lots of people who get married who can't have children. To take a State that does allow adoption and say — there, what is the justification for saying no gay marriage? Certainly not the one you said, is it?

MR. COOPER: You're -­

JUSTICE BREYER: Am I not clear? Look, you said that the problem is marriage; that it is an institution that furthers procreation.

MR. COOPER: Yes, Your Honor.

JUSTICE BREYER: And the reason there was adoption, but that doesn't apply to California. So imagine I wall off California and I'm looking just there, where you say that doesn't apply. 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.

MR. COOPER: Yes, Your Honor. 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. Suppose, in turn -­

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 -­

(Laughter.)

JUSTICE KAGAN: No, really, because if the couple — I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage.

(Laughter.)

MR. COOPER: Your Honor, society's -­ society's interest in responsible procreation isn't just with respect to the procreative capacities of the couple itself. The marital norm, which imposes the obligations of fidelity and monogamy, Your Honor, advances the interests in responsible procreation by making it more likely that neither party, including the fertile party to that -­

JUSTICE KAGAN: Actually, I'm not even -­

JUSTICE SCALIA: I suppose we could have a questionnaire at the marriage desk when people come in to get the marriage — you know, Are you fertile or are you not fertile?

(Laughter.)

JUSTICE SCALIA: I suspect this Court would hold that to be an unconstitutional invasion of privacy, don't you think?

JUSTICE KAGAN: Well, I just asked about age. I didn't ask about anything else. That's not -­we ask about people's age all the time.

MR. COOPER: Your Honor, and even asking about age, you would have to ask if both parties are infertile. Again -­

JUSTICE SCALIA: Strom Thurmond was — was not the chairman of the Senate committee when Justice Kagan was confirmed.

(Laughter.)

MR. COOPER: Very few men — very few men outlive their own fertility. So I just -­

JUSTICE KAGAN: A couple where both people are over the age of 55 -­

MR. COOPER: I -­

JUSTICE KAGAN: A couple where both people are over the age of 55.

MR. COOPER: And Your Honor, again, the marital norm which imposes upon that couple the obligation of fidelity -­

JUSTICE SOTOMAYOR: I'm sorry, where is this -­

CHIEF JUSTICE ROBERTS: I'm sorry, maybe you can finish your answer to Justice Kagan.

JUSTICE SOTOMAYOR: I'm sorry.

MR. COOPER: It's designed, Your Honor, to make it less likely that either party to that — to that marriage will engage in irresponsible procreative conduct outside of that marriage. Outside of that marriage. That's the marital — that's the marital norm. Society has an interest in seeing a 55-year-old couple that is — just as it has an interest of seeing any heterosexual couple that intends to engage in a prolonged period of cohabitation to reserve that until they have made a marital commitment, a marital commitment. So that, should that union produce any offspring, it would be more likely that that child or children will be raised by the mother and father who brought them into the world.

JUSTICE GINSBURG: Mr. Cooper, we said that somebody who is locked up in prison and who is not going to get out has a right to marry, has a fundamental right to marry, no possibility of procreation.

MR. COOPER: Your Honor is referring, I'm sure, to the Turner case, and -­

JUSTICE GINSBURG: Yes.

MR. COOPER: — I think that, with due respect, Justice Ginsburg, way over-reads — way over-reads Turner against Safley. That was a case in which the prison at issue — and it was decided in the specific context of a particular prison where there were both female and male inmates, many of them minimum security inmates. It was dealing with a regulation, Your Honor, that had previously permitted marriage in the case of pregnancy and childbirth.

The Court — the Court here emphasized that, among the incidents of marriage that are not destroyed by that — at least that prison context, was the expectation of eventual consummation of the marriage and legitimation of — of the children. So that -

CHIEF JUSTICE ROBERTS: Thank you, Mr. Cooper.­

It's been 44 years since the riots of Stonewall pushed the gay rights agenda into the public consciousness in a big way. Since then, Mick Jagger went from dangerous sex symbol to the guy dancing in a Maroon 5 video, hip-hop was invented, and the fashionable jean silhouette has changed roughly 187 times. We've given the homophobes plenty of time to think this over. It's time to move on without them.

Labels: Christofascist Zombie Brigade, civil rights, gay marriage, homophobia, Supreme Court