Wednesday, 27 March 2013

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It’s as if millions of debate coaches suddenly cried out in terror, and were suddenly silenced I’m just a teacher of argument, not a lawyer, so I’m only going to address the merits of these arguments on their merits, not their legal standing. To begin: JUSTICE KAGAN: Mr. Cooper, could I just understand your argument. In reading the briefs, it seems as though your principal argument is that same-sex and opposite—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? MR. COOPER: I—Your Honor, that’s the essential thrust of our—our position, yes. JUSTICE KAGAN: Is—is there—so you have sort of a reason for not including same-sex couples. Is there any reason that you have for excluding them? 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? MR. COOPER: Your Honor, we—we go further in—in the sense that it is reasonable to be very concerned that redefining marriage to—as a genderless institution could well lead over time to harms to that institution and to the interests that society has always—has—has always used that institution to address. But, Your Honor, I— JUSTICE KAGAN: Well, could you explain that a little bit to me, just because I did not pick this up in your briefs. What harm you see happening and when and how and—what—what harm to the institution of marriage or to opposite-sex couples, how does this cause and effect work? MR. COOPER: Once again, I—I would reiterate that we don’t believe that’s the correct legal question before the Court, and that the correct question is whether or not redefining marriage to include same-sex couples would advance the interests of marriage as a— JUSTICE KENNEDY: Well, then are—are you conceding the point that there is no harm or denigration to traditional opposite-sex marriage couples? So you’re conceding that. MR. COOPER: No, Your Honor, no. I’m not conceding that. JUSTICE KENNEDY: Well, but, then it—then it seems to me that you should have to address Justice Kagan’s question. MR. COOPER: Thank you, Justice Kennedy. I have two points to make on them. The first one is this: The Plaintiffs’ expert acknowledged that redefining marriage will have real-world consequences, and that it is impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be. And among those real-world consequences, Your Honor, we would suggest are adverse consequences. Cooper argues, not in essence, but is actually forwarding the argument that redefining marriage will have real-world consequences that are impossible for anyone to predict, but which include the adverse ones he knows will happen. Cooper fails freshmen composition. But what are his real concerns? MR. COOPER: Yes, Your Honor. The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus, refocus the purpose of marriage and the definition of...

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