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 marriage away from the raising of children and to the
emotional needs and desires of adults, of adult couples.
People might seek to meet the “emotional needs and desires of adults,
of adult couples”? Why would the gays want the emotional needs and
desires of all adult couples to be met? What did they ever do to them? Who really matters here anyway?
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—(Laughter.)
The men. Of course. The men matter here, because they’re the
ones who can continue to be fertile in perpetuity. So the emotional
needs and desires of couples are less important to Cooper than the government’s
commitment to protect the inalienable rights of viable sperm. But I’m
sure there’s no precedent about marriage and its effect on children that
might be relevant here.
GENERAL VERRILLI: Well, they might try
to make a different record about the effects on children. But there
isn’t a record to that effect here. And the fourth point I would make,
and I do think this is significant, is that 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.CHIEF JUSTICE ROBERTS:
Can I ask you a problem about—it seems to me that your position that
you are supporting is somewhat internally inconsistent. We see the
argument made that there is no problem with extending marriage to
same-sex couples because children raised by same-sex couples are doing
just fine and there is no evidence that they are being harmed. And the
other argument is Proposition 8 harms children by not allowing same-sex
couples to marriage. Which is it?
I wonder why Roberts didn’t want to address the argument that
biracial children can fare well in the world? I can’t think of any
reason why he’d want to avoid that issue. I’m sure he didn’t change the
subject to avoid talking about the fact that the sitting President might be relevant to the argument?
I don’t read a lot of Supreme Court transcripts, but I do teach
argument and did do forensics in high school, so I know both what the
former entails and what the latter occasionally requires, i.e. having
to take the AFF or NEG of a case based on a draw instead of a deeply
held belief. You have to argue the case you have to argue, I get that,
but honestly? Cooper couldn’t have made a more unsympathetic case about
an issue which, though it will be decided on other grounds, needed an
argument based on something more sophisticated than bigotry in order to
acquire more popular support. It’s not just a freshmen composition
course he failed today.
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