In March, the Supreme Court heard arguments about Proposition 8, a ban on same-sex marriages, which voters in California passed in 2008.
The defense of the ban had to be made on legal grounds. It would not do to say: “because God says all homos will burn in hell.” Charles Cooper, the lawyer supporting the ban, said that the debate over same-sex marriages is taking place in states across the country, and the Supreme Court should not interfere in this democratic process.
None of the justices appeared to think much of this argument. Justice Elena Kagan (casting a spell, above) said:
In reading the briefs, it seems as though your principal argument is that…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?
Cooper said yes, it was “the essential thrust of our position.”
Justice Stephen Breyer pointed out that “couples that aren’t gay but can’t have children get married all the time.”
Cooper allowed that was true, but he worried that if marriage was redefined as a “genderless institution” the focus of marriage would not be raising children, but rather “the emotional needs and desires of adults, of adult couples.”
Justice Kagan said, “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?”
Cooper said that it is rare that “both parties to the couple are infertile.”
Kagan said, “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.”
The transcript recorded: “Laughter.” Which Cooper’s argument deserved.