The Supreme Court heard the oral arguments for Hollingworth vs Perry, the case attempting to decide the fate of California’s anti-same sex marriage initiative Proposition 8, this Tuesday, March 26. Testimony was full of heated exchanges between the justices and both the prosecution and defendants.
Here are the top points and counterpoints from Tuesday’s arguments:
Image credit: Berkman
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 —
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)
2. Olson slams on Justice Scalia:
Image credit: Washington Post
JUSTICE SCALIA: Okay. So I want to know how long it has been unconstitutional in those –
MR. OLSON: I don't — when — it seems to me, Justice Scalia, that —
JUSTICE SCALIA: It seems to me you ought to be able to tell me when. Otherwise, I don't know how to decide the case.
MR. OLSON: I — I submit you've never required that before. When you decided that – that individuals — after having decided that separate but equal schools were permissible, a decision by this Court, when you decided that that was unconstitutional, when did that become unconstitutional?
JUSTICE SCALIA: 50 years ago, it was okay?
MR. OLSON: I — I can't answer that question, and I don't think this Court has ever phrased the question in that way.
JUSTICE SCALIA: I can't either. That's the problem. That's exactly the problem.
3. Olsen gets testy with Chief Justice Roberts:
Photo credit: McConnell Center
CHIEF JUSTICE ROBERTS: Sure. If you tell — if you tell a child that somebody has to be their friend, I suppose you can force the child to say, this is my friend, but it changes the definition of what it means to be a friend. And that's it seems to me what the — what supporters of Proposition 8 are saying here. You're — all you're interested in is the label and you insist on changing the definition of the label.
MR. OLSON: It is like you were to say you can vote, you can travel, but you may not be a citizen. There are certain labels in this country that are very, very critical. You could have said in the Loving case, what — you can't get married, but you can have an interracial union. Everyone would know that that was wrong, that the — marriage has a status, recognition, support, and you — if you read the test, you know —"
4. Olson superslams on Justice Scalia even harder:
Image credit: GOP USA
JUSTICE SCALIA: You — you've led me right into a question I was going to ask. The California Supreme Court decides what the law is. That's what we decide, right? We don't prescribe law for the future. We — 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?
MR. OLSON: When — 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.
JUSTICE 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)
It seems that the Supreme Court is not as boring as most people think of it. Look forward to more fascinating oral arguments on Wednesday, March 27, when the Supreme Court takes on United States v. Windsor, a case on the Defense of Marriage Act.