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Prop. 8: Justice Kagan cuts to the injustice of gay marriage ban

March 26, 2013|By Robin Abcarian | This post has been corrected. See the note below for details.

Gotta hand it to Supreme Court Justice Elena Kagan.

Tuesday morning she interrupted Charles J. Cooper, the attorney representing the anti-gay marriage side in the court’s hearing on California’s Proposition 8. She cut through the legal jargon, and got right to the point:

“Mr. Cooper, could I just understand your argument?” she asked. “It seems as though your principal argument is that same-sex and 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?”

Cooper replied, “That's the essential thrust of position, yes.”

TIMELINE: Gay marriage across the U.S.

If that’s true, how can anyone take the argument for Proposition 8 seriously?

Even Kagan seemed surprised: “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?”

Cooper replied that he did.

“What harm [do] you see happening and when and how?” Kagan asked. “How does this cause-and-effect work?”

Cooper could only say that while everyone agrees that redefining marriage will have “real-world consequences,” no one can guess what those might be. “I think it better for California to hit the pause button and await additional information from the jurisdictions where this experiment is still maturing,” i.e., where gay marriage is legal.


Moments later, Justice Anthony M. Kennedy, presumed to be the swing justice in this case, endorsed the idea that there’s some large-scale, potentially dangerous social experiment taking place. “There’s substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history or more.”

Yet, he noted empathetically that California’s estimated “40,000 children with same-sex parents” have a great stake in the outcome of the case. “They want their parents to have full recognition and full status,” he said. “The voice of those children is important in this case, don’t you think?”

What could Cooper say? Of course the children matter. They are the whole reason the state cares about marriage in the first place, according to his rationale. But no study exists, he said, to demonstrate whether marriage confers benefits on children that domestic partnership laws do not.

(How about using common sense, then? I mean, couldn’t one say that the kids who want their gay parents to have “full recognition and full status” inherently grasp what’s in their own best interest? Also, doesn’t Kennedy’s acknowledgment that some 40,000 California children live with gay parents refute the argument that married gay people don’t procreate. They do! Constantly!)


Kagan wanted to hear more about how the state’s interest in regulating marriage is all about procreation.

“If you are over the age of 55, you don't help us serve the government's interest in regulating procreation through marriage,” she said. “So why is that different?”

Cooper didn’t put it as coarsely as I am going to, but the answer, apparently, is because men are perpetual sperm machines.

“Even with respect to couples over the age of 55,” he said, “it is very rare that both parties to the couple are infertile.”

“I can just assure you,” replied Kagan, “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.”

Not so fast, said Justice Antonin Scalia.

“Strom Thurmond was not the chairman of the Senate committee when Justice Kagan was confirmed,” said Scalia, making a weak joke about potency. (Thurmond fathered children into his 70s. But his wife was more than 40 years his junior.)

It wasn’t just Kagan who cut to the heart of some of the antiquated attitudes that motivate the sentiment against gay marriage.

“Now what happens to your argument about the institution of marriage as a tool toward procreation given the fact that, in California, too, couples that aren't gay but can't have children get married all the time?” Justice Steven G. Breyer asked.

“Redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will 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,” Cooper replied.

Marriage: an institution that meets the emotional needs and desires of adult couples. In the real world, where most of us are living, I’d say that definition is already in effect.

[For the record, 3:18 p.m. March 26: An earlier version of this post questioned how the argument against Proposition 8 could be taken seriously. Rather, it is the argument in favor of the proposition that is questionable.]


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Twitter: @robinabcarian

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