On the Constitution and same-sex couples (Olson and Scalia):
SCALIA: The California Supreme Court decides what the law is. That's what we decide, right? We don't prescribe law for the future. We decide what the law is. I'm curious, when -- when did -- when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes -- some time after Baker, where we said it didn't even raise a substantial Federal question? When -- when -- when did the law become this?
OLSON: May I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.
SCALIA: It's an easy question, I think, for that one. At -- at the time that the Equal Protection Clause was adopted. That's absolutely true. But don't give me a question to my question. (laughter) ... When do you think it became unconstitutional? Has it always been unconstitutional?
OLSON: When the California Supreme Court faced the decision, which it had never faced before, is -- does excluding gay and lesbian citizens, who are a class based upon their status as homosexuals -- is it -- is it constitutional.
On sexual orientation (Justice Sonia Sotomayor and Cooper):
SOTOMAYOR: 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?
COOPER (in response): I cannot. I do not have any -- anything to offer you in that regard. ... 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 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.
On procreation and age (Justice Elena Kagan and Cooper, and later Scalia):
KAGAN: 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: 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)
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)
COOPER: 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 --
KAGAN: Actually, I'm not even --
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.) I suspect this court would hold that to be an unconstitutional invasion of privacy, don't you think?
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.
COOPER: Your Honor, and even asking about age, you would have to ask if both parties are infertile. Again --
SCALIA: Strom Thurmond was -- was not the chairman of the Senate committee when Justice Kagan was confirmed. (laughter)
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