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Gay Marriage Arguments: Cellphones, The Internet And Fertility Over 55

The U.S. Supreme Court heard lively arguments Tuesday in a challenge to California's Proposition 8 ban on same-sex marriages.

And, as many learned painfully after last year's court decision to uphold Obamacare, it is risky business to predict how justices will rule later based on questions raised in arguments.

So we won't.

Instead, here are five exchanges we found interesting, even if they may not prove predictive of the outcome.

Most involve Justice Anthony Kennedy, who is, once again, considered the swing vote of a court otherwise divided evenly between liberal and conservative justices.

1. Is same-sex marriage too new for the court to assess its effect on marriage and children?

Justice Anthony Kennedy: "I think there's — there's substantial — that 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."

Justice Samuel Alito: "Traditional marriage has been around for thousands of years. Same-sex marriage is very new. I think it was first adopted in the Netherlands in 2000. So there isn't a lot of data about its effect. And it may turn out to be a — a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe. But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet? I mean we — we are not — we do not have the ability to see the future."

2. Is marriage just about procreation, and what's best for children?

Justice Anthony Kennedy: "On the other hand, there is an immediate legal injury or legal — what could be a legal injury, and that's the voice of these children. There are some 40,000 children in California, according to [a legal brief] that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?"

Justice Elena Kagan: "... 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? ... 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?

Charles Cooper, lawyer defending Prop 8: "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 --


Justice Elena 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."

3. Do those arguing before the court in favor of enforcing Prop 8's ban on same-sex marriages, which was enacted by voter initiative, have legal standing to do so, given that California state officials — whose responsibility it is to defend the law in court — have refused to do so?

Justice Anthony Kennedy: "Basically that once the state goes halfway, it has to go all the way or 70 percent of the way, and you're doing so in a case where there's a substantial question on — on standing. I just wonder if — if the case was properly granted."

Chief Justice John Roberts: "I suppose there might be people out there with their own personal standing, someone who performs marriages and would like that to remain open to everyone but would prefer not to perform same-sex marriages, or other people. We seem to be addressing the case as if the only options are the proponents here or the state. I'm not sure there aren't other people out there with individual personalized injury that would satisfy Article III."

Justice Samuel Alito: "So start from the proposition that a state has standing to defend the constitutionality of a state law ... beyond dispute. The question then is, who represents the state? Now, in a state that has initiative, the whole process would be defeated if the only people who could defend the statute are the elected public officials. The whole point — you know this better than I do, because you're from California — the whole point of the initiative process was to allow the people to circumvent public officials about whom they were suspicious."

4. Is there a legitimate comparison between the Prop 8 case and that of the landmark 1967 Loving v. Virginia high court decision that invalidated laws banning interracial marriage?

U.S. Solicitor General Donald Verrelli Jr.: "... The principal argument in 1967 with respect to Loving and that the Commonwealth of Virginia advanced was: Well, the social science is still uncertain about how biracial children will fare in this world, and so you ought to apply rational basis scrutiny and wait. And I think the court recognized that there is a cost to waiting and that that has got to be part of the equal protection calculus. And so — so I do think that's quite fundamental."

Charles Cooper: "I'm glad that counsel for the respondents mentioned the Loving case, because what this court — what this court ultimately said was patently obvious, is that the colors of the skin of the spouses is irrelevant to any legitimate purpose, no more so than their hair colors, any legitimate purpose of marriage, that interracial couples and same-race couples are similarly situated in every respect with respect to any legitimate purpose of marriage.

That's what this question really boils down here, whether or not it can be said that for every legitimate purpose of marriage, are opposite-sex couples and same-sex couples indistinguishable? And with all due respect to counsel and to the respondents, that is not a hard question."

5. How might the case be limited to California?

Justice Sonia Sotomayor: "Is there any way to decide this case in a principled manner that is limited to California only?

Theodore Olson, lawyer representing Prop 8 challengers: Yes, the Ninth Circuit did that. You can decide the standing case that limits it to the decision of the district court here. You could decide ... it as the Ninth Circuit did --

Justice Anthony Kennedy: "The problem with the case is that you're really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that metaphor, there's a wonderful destination, it is a cliff. Whatever that was."


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