Supreme Court Oral Arguments on Gay Marriage: Full Audio

Justices will determine if California's same-sex marriage ban enacted by Proposition 8 is constitutional.
19:58 | 03/26/13

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Transcript for Supreme Court Oral Arguments on Gay Marriage: Full Audio
We'll hear argument this morning case 12144. Hollingsworth vs Perry mr. Cooper. Thank you mr. chief justice and may it please the court. New York's highest court in a case similar to this one remarked that until quite recently. It was an accepted truth for almost everyone who ever lived. In any society in which marriage existed. Commission -- we have the jurisdictional and -- issues here may be best if you could begin -- -- outstanding issue we have to mister Chief Justice. And your honor the official proponents. Of proposition eight initiative. Have to standing. Two. Defend that -- Before this court. As representatives of the people and the state. Of California. To defend the validity. But the measure that they brought forward. Have we ever granted standing. To proponents. Ballot initiative. And no your honor. That the court has not done that but that court has never. Had before it. A clear expression from unanimous. State's High Court. When they see that this is -- that the concern is certainly the proponents are interested me. In getting and the ballot and seeing it won't happen procedures are followed. But once its hands. They had no proprietary interest in its love -- -- justice of these. What everyone else so down on me distinguishable. From. The California. Citizenry in -- There distinguishable that your honor. Because the constitution of the state of California and its election -- Provided according to the unanimous interpretation of the California Supreme Court. That the official proponents in addition to the other official. Responsibilities. And authorities that they have. In that initiative process that those official proponents also have the authority and the responsibility. To defend the validity of that -- -- I guess the attorney general of the state doesn't have any proprietary interest either does -- No your honor the F inordinate Kennedy -- nor do because the law says he could. -- that's right your -- nor did the legislative. Leaders in the cartridge case that this any particular enforcement. Could could stand assigned to any citizen. The right to defend the judgment of this kind just Kagan -- -- a very tough question it's it's by no means the question before the court. Because because it isn't any citizen. It's it is -- it it is the official proponents that -- specific. And and carefully detailed work I guess you'd think if you want and a hypothetical could estates just assigned to anybody the ability to do this I. Your honor I think it very well -- it very well might be able to decide that. Any citizen could step forward and represented. The interest of the state and the. Well enough and wouldn't be if I'm sorry finished. Yes -- can. That may be true in terms of who they want. To represent about but the state can't authorize. Anyone. To proceed in federal court because that would leave the definition. Under article three of the federal constitution. As to who can bring who has standing to bring claims up to each state I don't think we've ever allowed anything like that but what your honor. It gets the point I want to make is that there's no question the state. Has standing the state itself. Has standing to represent its own interest in the validity of its own enactments and if the State's public officials. Declined to do that. It is within the State's authority surely. I would submit. To identify. If not all. Any citizen -- early supporter of of of the measure certainly -- those. That that very. Clear and identifiable group. Well that -- that is we source the chief justice and justice Kagan has given improper hypothetical the test. Your theory but in in this case proponents. -- -- must give their official address we must pay money. And they must all act in unison under California law so these five proponents. -- required at all times to act in unison so that. And distinguishes. And and to register and to pay money to for the prepared for the perfect so in in that sense it's. Different from simply saying any citizen but of course it -- and and I think but can you tell me. -- -- it's a factual background but with respect to their right to put the ballot initiative on the ballot. But how does it create an injury to them separate from that of every other taxpayer. To have slowness -- force. Your honor they -- the question before the court I would submit is not the injury to the individual proponents. It's the injury to the state. VVV legislate -- in the cartoon case had no individual. Particular -- injury and yet this court recognize they were proper representatives. Of the State's interest the states injury at least one of the unique guy has suggested. That. It seems counterintuitive. To think that the state is going to delegate. To people who don't have a fiduciary duty to. But it's going to delegate the responsibility. Of represented the state to individuals who have their own. Views they proposed the ballot initiative because it was their individual views not necessarily that the state. So. Justice Scalia. -- the question that the attorney general. Attorney general has no personal choice -- true -- he has a fiduciary obligation. -- the attorney general whether it's fiduciary obligation or not. Is in normal circumstances. The represented of the state. To defend name Aviv the validity of the states and -- when -- -- challenged in federal court but when that officer doesn't do so. The state surely has. Every. Authority and I would submit that responsibility. To identify particularly. An initiative in Indian and initiative YE a the fiduciary duty. Requirements. Before the state can designate a representative an important. What about your honor I would submit to you that I don't think there's anything in article three. Or in any of this courts the decisions that suggests that a representative. Of a state. Must be safe have a fiduciary duty but I would also -- Just generally. If you don't need to to specify if the this generally the people who get to enforce the legislation of the government are people -- government positions elected by the people. And -- here it helps individuals are not elected by the people -- appointed -- the people. In the California Supreme Court specifically addressed -- rejected that specific argument they said. It is in the context when the public officials the elected officials the appointed officials have declined. Have declined to defend a statute a statute that. By the way it excuse me in this case constitutional amendment was brought forward by the initiative process the court said it is essential to the integrity. Integrity of the initiative process in that state which is -- and -- precious. Right that every citizen. The initiative process in that state to ensure. That. When public officials and boom after all -- the initiative. Process is designed to control those very public officials to take issues. Out of their hands and -- public officials could could effectively Vito. An initiative by refusing to appeal it. -- and the initiative process. That hasn't let the historically. Think and forty states many states have what was called -- public action. A public action -- an action by -- uses. Primarily to vindicate the interest in seeing that the law is enforced. -- I would think well yes now that's the kind of action I think that this court has interpreted the constitution of the United States. Case -- controversy. To say that it does not -- hike in the federal system. And of course if that kind of action is -- very kind that does not lie. Well then to say but they really feel it's important that the law be enforced. They really want to vindicate the process and these are people of special interest if we found the five citizens who most strongly want to vindicate the interest in the law being enforced and the process for making won't be in force. Well that won't distinguish it from a public action. But then you say but also their represented the state. At this point the Dellinger -- which takes the other side. This is making a strong argument while they are at stake there really no more than a group of five people who feel really strongly. That we should vindicate his public interest and have good reason for thinking. -- -- so what do you read all these arguments of the not -- the agent and so forth you wanna say about. What I want to see your honor is that according to the California Supreme Court. The California constitution says and turns. That. Among the responsibilities. Of official proponents in addition to the many other. But responsibilities that they step forward and -- this an initiative process. Among those responsibilities. And authorities. Is to defend that initiative. If the public officials with -- initiative process is designed to control. You have refused to do it it might as well say -- in those terms Iran they -- if you want if you wanna proceed -- America should feel free to do so. Future. My mind. School. As a lessening the V and the accepted -- Excuse me he accepted truth. That. That the New York High Court. Observed. Is one that -- changing and changing rapidly in this country. As people throughout the country. They engage in an earnest debate. Over whether the age old definition of marriage should be changed to include same sex couples the question before this court. Is whether the constitution puts a stop to that ongoing democratic debate and answers this question for all fifty states and it does so. Only. If the respondents are correct. That no rational. Thoughtful person of good will. Could possibly disagree with them in good faith on this agonizingly difficult issue. -- issues a constitutional issues that have been presented to the court. Are not the first impression here. In baker against Nelson -- this court unanimously dismissed for want of a substantial federal question. And needs to. Group -- big and Nelson was 1971. The -- -- -- -- decided that. Gender based classifications. Get any kind of heightened scrutiny. -- -- -- The -- had intimate time there was considered criminal. In many states can keep him anyway so I don't think we need that much and they -- Nelson. We're here I'm certainly. Acknowledged presidential limitations of -- -- dismissal. But that they -- against Nelson also came. For fairly fast on the heels of the loving decision. And and that -- on that's simply make the observation that seems implausible. In the extreme right. Four. Nine justices who have to have seen no substantial federal question if it is true as a response maintain. That. The traditional definition of marriage. Insofar as that it is in support does not include. Same sex couples insofar as it is -- gender definition is irrational and can only be explained can only be explained. As the result of anti gay and malice and of their desire to harm. Do you that would of this can be. Treated as a gender based on vacation. He era -- it's it's a difficult question. That and if -- were trying to wrestle with and yes your honor anything. And we do not we do not think it passes. Properly viewed as a gender based classification. Virtually every. Appellate -- state and federal with one exception of Hawaii superseded. Opinion has agreed that it is not a gender based classification. But it I guess it is gender based in the sense that marriage itself is it she wondered institution engendered term. And so in the same way that father -- Is his gender or motherhood is gender. It's standard in that sense but what we we agree that she took to the extent the classification. The acts as as it clearly jobs. Same sex couples. That that classification can be viewed as being one of sexual -- out of -- rather than Oprah. Outside the marriage politics. Can you think of any other rational basis. Reason. First C using sexual orientation. As a factor. In. Denying. Homosexuals. Benefits. Or imposing burdensome. Or any other rational decision making that the government could -- denying them the job. Not granting them. Benefits of some sort of any other decision. Your -- I cannot I do not. Any. Anything to offer you they are in that regard it as -- and -- sure you. And why aren't they -- class. If there -- classes. That makes any other discrimination. In proper. Erection. Then why are we treating them -- clash with this one -- Are you saying that the interest of marriages so much more compelling than any other -- sustained could have. No your honor we're not certainly not. -- we we we are saying the interest of marriage and it in this and the State's interest society's interest. In what we have. Frame is responsible -- appropriation is is vital but at bottom. -- with respect to those centrists. Our submission is that same sex couples and opposite sex couples are simply not similarly situated. But come back to you were precise question. I think. Just so tomorrow you're you're probing into whether. Or not. Sexual orientation. Ought to be viewed as a quasi. Suspect or suspects for us. And our our position is that it does not qualify under this court's. Standard in hand and traditional a test for identifying suspected us. They don't be -- classic self. He is. It is is quite amorphous it that -- consistent definition it's as the plaintiffs' own experts. We're we're we're quite. Did it -- -- He hit it if it does not. It it it it does not qualify. As an accident of birth -- ability in that. In that sense again so -- so what. I don't quite understand if you're not dealing with assistant class question. And why would she say that the government is not free. To discriminate against. Well your honor I would think it. That topped -- it I think it's a it's a very different question whether or not. The government can proceed arbitrarily. And irrationally. With respect to any group of people regardless of whether or not they qualifying. Under this court's traditional tests for suspected us and and and the hypothetical. I understand -- you to be offering. I would submit would create. -- -- Unless something -- that that is not a current in the immediately and arbitrary and capricious. Distinction. Among similarly situated individuals. That that is not what we think is at the the -- the traditional definition of man. Mr. Cooper could -- just understand your argument does it it is reading the briefs seems as though your principal argument is that. Same sex and opposite -- sex couples are not similarly situated. Because. Opposite sex couples can procreate same sex couples cannot and state principle interest in marriage. He's in regulating procreation is that. Basically correct. -- hear your honor that's that's the essential thrust of our positions is is closer you have sort of a reason for not include him. Same sex couples. Include it is there any reason that you have for excluding them another what you're saying. Well if we allow same sex couples to marry him. It doesn't sir and the State's interest but do you go further and say that it harms any state interest. Your honor we we we go further and in the sense that it is reasonable to be very concerned. That redefining marriage. Two as as a generalist institution. Could well lead over time to harms to that institution and to the interest of society. Has always. As has has has always use that its decision to address Clinton. Look I don't 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 town -- what what harm. To. The institution of marriage -- to opposite sex couples how does this cause and effect work. Don't want once again -- 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 it. Most American are you conceding the point that there is no harm or -- immigration. Two. Traditional. Opposite sex marriage couples majority conceding. Don't your I don't know I'm I'm I'm not conceding and I got two -- seems to me that you should. Have to address justice Kagan good thank you to -- Kennedy up two points to make. The first one is this. The that plaintiffs' expert acknowledged. That redefining marriage will have. Real world consequences and 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 or adverse consequences. But consider that California voters. In 2000. In the ballot Booth. With the question before -- whether or not. This age old bedrock social institution should be fundamentally redefine. And knowing that there's no way that she or anyone adults could possibly know what B. Long term implications. Of a profound redefinition of a bedrock social institutions. Would be. That is reason enough your -- that would hardly be. Irrational for the -- to say. I believe that this experiment which is now only barely four years old -- in Massachusetts the -- state it is conducting it. To say I think it better for California to hit the pause button. And await additional information from the jurisdictions where this it's experiment is still maturing. Mr. -- -- -- -- give you want one concrete thing going don't mention some concrete things if you. Redefine marriage to include same sex couples you must. You must. Permit adoption by same sex couples. And there's there's considerable disagreement among among sociologists. As too well what the consequences of raising a child and in -- and in a single sex. Friendly. Work whether that is harmful to the children. Some states do not do not permit adoption by same sex couples for that reason. Now I don't think we know the answer to why do you know the answer to that whether it whether or arms -- helps the child. You know you're -- and is there is that's a possible. Deleterious effect his. You -- -- if it is certainly among the. Being kept us going mr. Cooper because that -- -- anything. In Kaplan will be impact same sex couples adopting China. That's right here on that it's true and but what you think your honor. Here's here's that point -- isolated it's true but irrelevant -- year. There arguing for the -- -- rule. Which applies to states other than -- points. That every state must allow marriage by same sex couples. And so we the most states that believe it is harmful and I take no position on whether it's harmful -- not. But it is certainly true that. That that there's no scientific answer to that question at this point in time that. And and that -- honors the point nine trying to make and it is the respondents. Responsibility to prove it under rational basis review. Not only is that it is that that -- clearly will be no harm but that -- beyond debate. That there will be no harm. US depending. And you are opposing a judgment that apply to California -- Not to all of the students. If that's true your honor and and and if there were way too. To that cabin the arguments is being presented to you to California. Then the concerns about. Redefining marriage can in California. But could be confined to California but they cannot. I think there if there's substantial. That there's substance. To the point that -- the -- logical information as this new we have five years of information is that the way against 2000 years of history are more. On the other hand there is an immediate. Legal injury. Or. Legal. What could be illegal entry and that's the voice of these children are some 40000. Children in California according to the red -- That live with same sex parents. And today. Wrong their parents. To have full recognition -- The voice of those children is important educational treatment. Europe it certainly would not dispute is the importance of that consideration. That consideration especially. In the political process where this issue is being debated and will continue to be debated certainly in California is being debated elsewhere. But but on that specific question. Your honor. They're here simply is no. -- in fact there expert agreed there is no data no study even that would examine. -- whether or not there's any incremental beneficial effect. From marriage over and above. The domestic partnership. -- laws that were enacted by the state of California to recognize. Support and honor same sex relationships. And their families. There's simply no bid dated at all that would that would permit. 12 drawl. -- draw that conclusion I wouldn't recall the Justice Kennedy that the point made him in Rome. Under rational basis review newest us provision will be a sustained. Even if it operates at a disadvantage of a group if it is -- -- otherwise. Advances. Rationally a legitimate state interest. Mr. Cooper will afford two more -- shouldn't worry about losing your rebuttal time. Please open watchful -- is going to zero on and I'd like asking this assume you can distinguish Californians those -- accept your -- Except that the school -- version of your argument and that distinguishes California. Now let's look at California. What precisely is the way in which allowing gay couples to -- -- interfere with the vision. Of marriage as procreation children. That allowing sterile companies. Couples. Of different -- -- Would not I mean there are lots of people look at -- -- you can't have children. -- to take a state that it does allow adoption. And say what. They -- what's the justification. For saying no game there. Certainly not the one set is it. -- -- not clear. You said that the problem is marriage at a state institution that -- -- appropriate. The -- and the reason there was adoption. But that doesn't apply to California. -- imagine -- wall off California and I'm looking just there where you say that -- a plot. Now what happens here argument about the institution of marriage as -- tool towards procreation. In California to him. Couples that aren't day but can't have children. Get married all the time. It -- the concern is that -- defining marriage. As a -- institution. Will separate its abiding connection. To its historic traditional appropriated 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. -- and I -- interested mr. Cooper supposed estates said. Because we think that the focus of marriage really should be on procreation. We're not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that -- constitutional no your honor it would not be constitutional because that's the same state interest I would think you know. If you're over the age of 55 you don't help us. -- of the government's interest in regulating procreation marriage so -- is that different. -- -- -- honor he even with respect to couples over the age 55. It is very rare that both both parties. -- the couple. Are infertile. And the traditional. -- really penalized if a couple. I can just assure you if both the woman in the man. Are over the age of 55 they're not a lot of children come at Madison. Your honor society -- society's interest in responsible procreation. Isn't. Just. With respect to the appropriate capacities of the -- itself America on the which imposes. The obligations of fidelity and monogamy your honor. It advances -- they -- interest in responsible procreation by making it more likely that neither party. Including the -- party took to that actually mr. nobody -- -- suppose we could have a question fair. At that the marriage desk when people coming to get that -- you know are you fertile or are you not fertile. I suspect this court would hold that -- the an unconstitutional. Invasion of privacy to try to -- about -- which I didn't ask than anything else. That's and and we -- about people's -- the time. I eat your honor and even asking about age you would have to ask you both parties are infertile. Again. -- -- was was not to chairman of the senate. Committee when justice Kagan was confirmed. Very few men -- very few men. Outlive their own fertility. And. So there's a couple where both people are over the age of fifty. I am I where both people there are at the age of fifty and and your honor again. American norm. Which imposes upon that couple. The obligation of fidelity. -- -- makes parent Samsung immediately you can finish your answer just this is designed. Your honor. But to make it less likely that either party to that took to that marriage. Will engage in irresponsible. Appropriated conduct outside of that marriage. Outside of that marriage. That's America American norm society has an interest in seeing a 55 year old -- That is just as it has an -- seeing. Any heterosexual couple is that -- -- is due to engage in a prolonged period co habitation. Two. To reserve that. Until they have made -- marital commitment. America's commitment so that. Should that union. Produce any offspring. It'll be more likely that they won't be that that child or children will be raised by the mother and father who brought him into the world basically vote. Police -- -- and somebody who's locked up increasingly happening you know. Has a right to marry it has a fundamental right to marry. No plans to build the -- procreation. You're referring Hampshire -- turner case and that night I think that with due respect justice Ginsburg. We way overreached. That way overreached turner again -- That was a case in which that that the prison at issue and it was decided in the specific context of -- particular prison. Where they were both female and male inmates many of them minimum security inmates it was dealing with the regulation. Your honor that had previously. Committed marriage. In the case of pregnancy and childbirth. It's -- court that the court here emphasize that among the incidents of marriage. That are that are not destroyed but that at least that prison context. Of was the expectation. Of eventual consummation of the marriage end legitimate action. Of the children. Thanks so thank you mr. Cooper thank you question it. -- -- Thank you mr. Chief Justice may -- -- court. I know that you -- want me to spend a homeowner to addressing -- standing question but before I do that. I thought that would be important for this court. To have proposition eight put in context what it does. -- walls off. Gay and lesbians from marriage the most important relation in life according to this court thus -- -- A class of Californians based upon their status. And labeling their most cherished relationships. As second rate different. On -- people and not okay. -- -- -- Cut off your friend before he could get into the merits so I think I was trying to hear what that. I know. I think it's only fair to treat you. The same perhaps you could address your jurisdictional argument. Yes I think that our jurisdictional argument is as we set forth in the brief. California cannot create article three standing by designating wherever it wants. To defend the state of California and. Actually this -- -- whoever wants these are five proponents. Of of the measure and if we were to accept your argument. It would give the state one way ratchet the state could go and and make a defense maybe a half hearted defense. Of the statute and and then when -- this statute is held invalid simply simply leave. On the other hand if if the state loses the state can appeal so this is a one way ratcheted it favors the state end. Allows governors -- and and and other constitutional officers in different states to thwart the initiative -- That's the that's the way the California Supreme Court sought with respect -- California law. The governor and the attorney general of California are elected to -- act in the best interest of the state of California. They made -- professional. Judgment. Given their obligations of officers of the state of California. The California Supreme Court said that proponents of by the way only four of the five -- here doctor -- withdrew from the case. Because of some many things he said during the election. -- -- promise are also has that your position that. The only. People who could defend. A valid a law that's adopting California through the ballot initiative aren't the attorney general and the governor. So that if the attorney general and the governor don't like the ballot initiative that will go on -- -- I don't your eyes and -- I don't think it's quite that limited I think one your colleague suggested that there could be an officer appointed there could be an appointee of the state of California. Who had responsibility. Fiduciary responsibility. To the state of California and the citizens of California. To represented the state of California who along along -- for deployment. The same government that didn't want to defend the levels that happens all the time as you recall in the case of well it's not spent too much time on independent counsel. Provisions. The governor the governor of the government of the state of California frequently appoints an attorney -- perceived conflict of interest -- -- -- that person would have responsibility to the state and might have responsibility for the attorneys fees. I suppose there might be people out there with their own personal stand -- someone who. Performs marriages and would like that to remain open to everyone but would prefer not perform same sex marriages. -- the people we seem to be addressing the cases -- the only options are the proponents here. For the state. I'm not sure there are other people out there with the individual personalized injury that would satisfy articles. There might well be -- -- in a different case arm I don't know about this case if there was for example. This was an initiative measure that allocated certain resources. Of the state of California and the people of what may -- was a binary system of people got resources than other people didn't get resources there could be standing someone would show actual injury. The point I guess at the bottom of this is. The Supreme Court this court decided -- and range -- -- that congress couldn't specify members of congress in that context even where the measure did. -- depleted or diminish. Powers of congress -- states are not -- of -- states are not bound by this same separation of powers doctrine. That underlies the federal constitution. You couldn't have a federal initiatives for example they're free -- So start from the proposition that -- state has standing to defend the constitutionality. -- state law. I'm beyond dispute question then is who represents the state now in a state that has initiative. But 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 -- -- from California the whole point of the initiative process was to allow the people. To circumvent public officials about whom they were suspicious. So if you reject that proposition what is left is the proposition that the state. State walking shoes. Some other person -- some other group. To defend the constitutionality. State law and the California Supreme Court has told us that the plaintiffs in this case are precisely. Those people so how do you get around. That only I that's exactly what the California Supreme Court thought the California Supreme Court. Thought that it could. Decide that the proponents whoever they were and this could be 25 years after the election it could be one of the proponents of the before the proponents. They could have an interest other than this state because they have no fiduciary responsibility to the state they may be -- attorneys' fees on behalf of the state. -- on behalf of themselves but they haven't been appointed they have no official responsibility to the state and my only argument and I know what's a close look because California. Thinks that this is the system. California Supreme Court fought officers was a system that would be -- with respect to article three that that takes more than that under. -- -- and I think that your not answering the fundamental fear. And so and and the -- -- brief that sets -- this test of fiduciary duty doesn't quite. The assumption is that there are not. Executive officials who want to defend well. They don't like it no one's gonna do. So how do you get the law a defendant in that situation. I don't. Have an answer to that question unless there's an appointment process either built into the system works and officer of so -- why more isn't. Dispute. And -- an appointment process that -- in. The ballot initiate two workers. -- have now become -- And that's the -- your argument and that's our that's yard there are moments make but it but it must be sad that it happens all of the time. That federal officials and state officials decide not to -- -- statute. To enforce the statute in certain ways we don't then come in and decide that they or someone else ought to be in court for every particular. Very -- with a brief says is the -- Like people. It's not -- -- -- point. -- of the states interest. When it defends the law is the interest in execs using the law of the -- So all you have to do is give a person that interest but when a person has the interest of defending this -- As opposed to -- and being involved all of the state of California. There can be all kinds of conflicts all kinds of situations. That's what I got out of the -- -- so give the person who fat interest and that. They say is what's missing here. And you'll say I mean that's that's here and you say it's missing here I wasn't missing here. It is what is missing here because you're not an officer of the state of California. You don't have a fiduciary duty -- state of California you're not bound by the ethical standards of an officer of the state of California. Two represented the state of California could have conflicts of interest. And as I said -- -- could be incurring enormous legal fees on behalf of the state from the state has decided to go that route. I mean they should feel free to move onto the merits thank -- your honor. As -- pointed out -- -- at the outset that this is a measure. That walls off the institution of marriage which is not society's right. It's an individual right that this -- again and again and again and said the right to get married. Be right. To have the relationship of marriage is a personal right it's a part of the right of privacy. Association. Liberty and the pursuit of happiness in the cases in which you've described. -- -- right to get married under the constitution. You've described it as marriage procreation. Finley. Other things like that -- the appropriation. Aspect. The -- the responsibility. Or ability or interest in procreation. Is not a part of the right to get married. Now not sure council that it makes much of -- its right to view this as excluding a particular group. When the institution of marriage developed historically. People didn't get around until attempt this institution but let's keep out homosexuals. The institution developed. To serve purposes that by their nature. Didn't include homosexual couples. It is. Yes you can say that it -- some of the other interest where it is makes sense to include them but not all the interest. And it seems to me. -- that your your friend argues on the other side if you have an institution that pursues additional interest. You don't have to include everybody just because some other aspects of it can be applied to them well. And there's a couple of answers to that seems to me mister Chief Justice in this case that decision to exclude. Gays and lesbians. What's made by the state of California poll that's only because proposition he -- a 140 days after the council supreme courts to issue that's right -- -- They don't you think it's -- More reasonable to view it as it changed by the California Supreme Court. Of this institution has been around since time to -- more to California Supreme Court like this Supreme Court decides what the law yours. The California Supreme Court decided that -- be equal protection and due process clauses of that California constitution. Did not permit excluding gays and lesbians from the right. To get married -- -- -- Me right into a question I was going to ask. The California Supreme Court decides what the law is -- -- we decide right we don't prescribe it off for the future we just. He decide what the law is I'm curious win win deep. When did it become unconstitutional. To exclude. Homosexual. Couples from march. 1791. 1868. When the fourteenth amendment was adopted. Some times. Sometime after baker. Where we said it didn't even raise a substantial federal question. Went with with women. Win at Wimbledon -- -- become the -- -- -- -- answer this in the form of a rhetorical question when did it become unconstitutional. To prohibit interracial marriages when did it become unconstitutional. To -- -- Logistic question I think for that one. At the time that. That the descriptive equal protection clause was adopted that's absolutely true. What. Don't give me a question to my question and it. When do you think it became unconstitutional. Has always been moved to -- And -- when the California Supreme Court faced a decision which it had never faced before. Is does excluding. Gay and lesbian citizens who are -- class based upon their status as. Homosexuals. Is it is it concert to -- that's not when he became unconstitutional. That's when the did in an unconstitutional matter. In an unconstitutional manner -- wind duty to be -- unconstitutional. To prohibit. -- primary then they did not decide Simon state to a Justice Scalia assume now that the court decided a case that can be more toward members of the California Supreme Court and -- -- your argument you say it is now unconstitutional. Yes wasn't always unconstitutional. It was constitutional. When we did this in as a culture determined that the sexual orientation is a characteristic they have individuals. That they cannot control basically -- -- that happen when the debtors no specific date in time this is an Atlanta. Mike's like us to know that this I think he's -- as the pace of the candy imported to date when the police -- featuring Williams today. California decided. At the citizens of California decided after the Californians -- Supreme Court decided. That individuals had a right to get married irrespective of their sexual orientation in California and then the Californians. Decided in proposition eight wait a minute we don't want those people should be able to tell your case your case would be different if proposition eight. Was enacted into law. Prior to that sort -- I would make I would make it also make -- and that. Distinguishes it in one respect. But what also I would also make the argument mister Chief Justice. That we are exclude this if marriage is a fundamental right and -- -- a classification. Based upon a status of individuals which this court has repeatedly decided. That gays and lesbians are defined by their status there's no question about so. Would be unconstitutional. Even in states that do not allow civil we truce we submit that you you could write a narrower -- know how long it has been on constant tight you don't -- plan a seems to me just discoveries that may you live of the animals Tellme would politically I don't know how to decide to -- I crisis like you've never require that before when you decided that that. Individuals. After having decided that separate but equal schools were permissible a decision by their sport when you decided that that was unconstitutional. When did that become 150 years ago it was okay. I can't answer that question I don't think this -- -- -- I can't answer questions problem what I essentially right now the cases before you today. Is whether or not California. Can take a class of individuals. Based upon their characteristics they're distinguishing characteristics. Remove from them the right of privacy liberty association spirituality. And identity. That that marriage gives them it it is it is not an answer is safe procreation or anything of that nature because procreation is not a part of the right yes -- It really about the -- argument that. You've that's in this case if the court want to reach it. They've. Rationale of the ninth circuit was much more narrow it basically said. -- California which has been more generous. More opened two protecting. Same sex couples than almost any state in the -- Just didn't go far enough and is being penalized for not going far enough that's a very rationale on which to sustain what's. The discord as I was looking at context -- up for example amount New Orleans case involving the gambling -- -- them. And advertising you look at the context of what was permitted what was not permitted and does that. Rationalizations. For prohibiting and that case the advertising in this case. Prohibiting the relationship of marriage doesn't make any sense in the context of what because -- -- So mr. Olson and it if California provides all -- substantive benefits of marriage to same sex domestic partnerships. And you seriously arguing that if California. It if the state case before us now we're from a state that doesn't provide any of those benefits. To same sex sex couples this case would come out differently. No I don't think it would come out differently because of the fundamental arguments were making with respect their class based distinctions with respect to a fundamental right however. To the extent that my opponent in the context of California. Talks about child rearing. Or adoptions. Or or or rights of people to live together and that sort of thing those arguments can't be made on behalf of California because California is already made a decision. That gay and lesbian individuals are perfectly suitable as parents they're perfectly suitable to a dot. They're raising 37000. Chills -- in California and the expert on the other side specifically said and testified that they would be better off when their parents were allowed to get. There I think he can have it both ways either. This case is the same. This would be the same if this were -- -- Oklahoma. Or it's different because -- California and California has provided all of -- substance. I think it's good it's not that we're arguing that those are inconsistent. -- the -- the fundamental thing is that denying gays and lesbians. The right of marriage which is fundamental under your decisions that is unconstitutional. If it is -- if if the state. Comes forth with certain. Arguments Utah might come forth with certain justifications. California -- come forth with others. But the fact is that California can't make the argument that -- -- her child -- -- people living together because they've already made. Policy decisions so that doesn't make them. So it's just about this just about the -- people in this case. The label says my sex couples have every other right it's just about the labeled the label marriage means something even our own works if you tell if you tell a child. That somebody has to be their friend. Suppose you can force the child to say this is my friend but it changes the definition of what it means to be -- friend. And that's it seems to me what that is what supporters of proposition eight are saying -- your take all your interested in -- the label and you insist on changing. The definition of the label. It is like you were to say you can vote. You can travel which you may not be a citizen there are certain labels in this country that are very very critical you -- 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 its status recognition support and you if you read. Personally know how do we know that that's the reason -- -- necessary part of the reason that we recognize marriages a fundamental right. That's you you've emphasized that. And you said well it's because of the emotional commitment -- -- it is appropriate -- aspect that makes it a fundamental right. But you have said that if you -- marriage is a fundamental right with respect appropriation. And at the same level on getting married. Privacy you said that in as a -- he hates you said that in the Lawrence case and you said -- in other cases to Skinner case for example Mary just put on -- pro. -- equal footing. With appropriation all aspects and you -- this court is the one that has said over and over again that marriage means something to the individual. The privacy intimacy. And it is up and matter of status and recognition -- -- -- a. The bottom line that you're being absent and and you just one that an -- city in the answer. If you save -- marriage is a fundamental right. What state restrictions. Could ever exist. -- -- -- is what state restrictions with respect to a number of people. With respect to that could get married the incest laws that mother and child a -- and that are being taken as I can accept that. The state has properly and overbearing interest. Protecting a child -- so there -- each to marry. But what's -- What you've said. You've said in the case is decided by this court that the polygamy issue. Multiple marriages raises questions about exploitation. Abuse patriarchy. Issues with respect to taxes inheritance child custody is an entirely different thing and if you. Put it the state prohibits polygamy. It's prohibiting conduct. If it prohibits gay and lesbian citizens from getting married it is prohibiting. Their exercise our right based upon their status it's selecting them as a classic as you describe. In the Romer case and as you described in the Lawrence case and other cases you're picking out a group of individuals to deny them the freedom that you've -- -- fundamental important and vital in this society. And it has status and stature as you pointed out in the BMI case -- that there's different. Is there any way to decide this case. And in principle matter. That is limited to California. Yes the ninth circuit did that you could decide to stand in case -- limits -- to the decision of the district court here you could decided as the ninth circuit did the real problem. The problem with the case is that you're really asking them particularly because of the sociological evidence -- site. For us to go into uncharted waters and you can play with that metaphor that's a wonderful destination and there's a cliff -- -- But. You're you're you're you're doing so and it and in -- case for the opinions very narrow. Basically that once the state goes -- and ethical lawyer 70% of the way. And you're doing so in a case where there's. A substantial questions. I'm standing I just wonder if the if the case was -- program. But officials certainly properly granted your -- I -- there was a full trial of all of these issues. Other was a twelve day trial the judge insisted on evidence. On all of these questions this this is safe -- you have not mention the ninth circuit. -- an issue yes the ninth circuit looked at -- and decided because of your decision on the Romer case of this court's decision on the Romer case. That -- to be decided on the narrower issue. But it certainly was an appropriate case to grant and those issues that I've been describing are certainly fundamental to the case and that I -- don't want no news. The -- indulgence that what I -- as you suggest that this is uncharted waters. That it was uncharted waters when this court. In 1967. And -- loving decision said that in -- rate for prohibitions on interracial marriages. Which still existed in sixteen states were unconscious. -- ocean with hundreds of years old in the commonwealth countries this was -- and the united -- and -- what we have here is that's so that's not accurate -- Eight guys respectfully submit that we've under we've learned to understand more about sexual orientation and what it means to individuals. I guess -- the language that. Justice Ginsburg used at the closing. Of the BMI case is an important thing it resonates with me a prime part of the history of our constitution is a story. Of the extension of constitutional rights to people once ignored -- Floating thank you counsel. -- were really. Mr. chief justice and may please the court. Proposition eight denies gay and lesbian persons equal -- protection of -- loss you don't think you're gonna get away with not starting with Iraq. As an amicus I thought I might actually are. And of course we didn't take a position on standing we didn't we gave him grief -- we don't have a formal position on standing. But I will offer this observation based on the discussion today in the briefing we do think that while it's certainly not free of doubt. That the better argument is that there is not. Article three standing here because. It -- -- I don't go -- to summarizing our position but as we have a formal position. We do think. That -- respect the standing that at this point initiative process over. That. Petitioners really have what's more in the nature -- generalized grievances because. They're not an agent of the state of California don't have any other. Official tied to the state that would what result in any official control of there litigation that the better conclusion is that there's not a -- state. Looks like you're going to be making. Standing argument that. Some parties think it's rather tenuous but. Today here -- very strong for article three standing. What we said this was we said this was a close question. And our interest our Justice Alito and tomorrow's -- what we we have briefed matter thoroughly and will be prepared to discuss -- with the court tomorrow. -- respect to the merits. Two fundamental points lead to the conclusion that there's an equal protection violation here first every warning flag. That warrants exacting scrutiny is present in this case. And petitioners defense of proposition eight requires the court to ignore those warning flags instead apply highly deferential. We optical rational basis review as though proposition eight -- par with the law treating competitions. Less favorably than optometrists. When it really is the polar opposite such a law. Early accident to send your argument. You are talking about it. The entire United States. But you feel good faith its only eight or nine state estate fit permit. And civil union. And -- Britain brings up a question -- act -- -- -- -- and made considerable progress. Testing -- on the way. But in the -- and the government's position is if he came -- in the -- he's done absolutely nothing at all. Then. You can do it delisted -- -- that that gets to my second point. Your arm which is that -- do think the problem here with arguments that petitioners are advancing. Is that California's own laws to cut the legs out from under all of justifications. That petitions have offered in defense -- eight. And I understand -- -- when the point -- Justice Kennedy raised earlier but I do think this court's equal protection jurisprudence. Requires the court to evaluate the interest that the state puts forward not in a vacuum but in the context of the actual substance of California law and here with respect to California law. Gay and lesbian. Couples do have the legal rights and benefits of marriage full equality -- adoption full access to assisted reproduction. Therefore the argument about the State's interest -- that. That petitions advance have to be tested against that reality and and they just don't measure up. None of -- what -- like whenever you think. You what is -- was quite look a state that does not. Brigade helped hurts them much more. Than a state that does something. And of course it's true that it does hurt their argument that they do point law. But which -- their good argument. In Europe and I mean take -- state. It really does nothing whatsoever they have no benefits no nothing no not a cut. And moreover if if you're right even in California. If they have if their -- you know if it -- is enough. They won't get federal -- Those that are tied to marriage. Because they're not back. So so a state that does nothing hurts them much more. And -- you're -- to say it's more likely to be justified under the constitution. I'd like to know some specificity how that could be. Well it beat because you have to measure the under that standard of protection scrutiny that we think this -- cases I wonder principle but I'm saying which -- their good arguments in your opinion it would be good enough to overcome. The state that does nothing but not good enough to overcome California -- -- -- -- what we. What we -- do what we're saying about that is that. We we're not prepared to close the door. To an argument in another state where the state interest haven't. Cut the legs out from under the -- it's. And I think I suppose the caution rationale. That mr. Cooper identified. With respect to the effects on children. If it came up in a different case with a different record after all here this case was litigated by petitioners on the theory. That rational basis supply and they didn't need to show it. And so they didn't try to -- I IIRU was set tight scrutiny should applying and so I don't wanna. -- about this we understand now -- of -- heavy burden for state to meet. All we're suggesting is and the situation in which. This state interest -- Cut out from wondered is there as they are here that that issue -- -- remain open for a future case and I and I think the caution rationale be the one place where. Might -- it open to can't. Leave it open -- for various -- irony and which is the -- system war apple -- strengths. Well look what I understand that your honor but I do think that you have to think about. Claim -- right on the other side of the equation here and in this situation. -- of attack. The the argument here. That that that gay and lesbian couples can be. Denied access to marriage on the ground. And in interest in responsible procreation. And childbearing just can't stand up given that the parents have full equality. If you get -- gay and lesbian parents have full equality apart from -- Let -- recess the the the -- fax. Same sex marriage the potential effects on a same sex marriage -- potential the effects of proposition. April what what is your response of the argument which has already been mentioned about they need to be cautious in the -- of the newness of the concept that -- of same sex marriage -- one thing that the parties in this case seemed to agree on is that. Marriage is very important it's thought to be a fundamental building block society and -- preservation. Essential for the preservation of society and -- traditional marriage has been around for thousands of years same sex marriage in very. 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 -- good thing as. Supporters of proposition. -- Apparently believe but you want us to step in and render a decision based on an assessment of the facts of this institution which is -- -- cell phones and the Internet anywhere we are not. Who we do not have the ability to see the future. On a question like that of such fundamental importance why should not be left for the people. Either acting through initiatives and referendums or through their elected public officials are. Four points and like to make -- response that Justice Alito I think they're all important. First. California did not proper proposition eight do what my friend mr. Hu percent -- -- what they push the delete button. This is a permanent and it's in the constitution it's supposed to take this issue out from the legislative process. So that's the first point second. -- just in response to that of course the constitution be amended and and I think I read that the California constitution's been amended 500 times. But that so it's not exactly like. Yeah it does change -- of course not but it is important that the theme of this is to take it out of the normal legislative process second point is that. With respect to the concerns -- your -- -- raised. California. Has been anything but. Cautious it has. Given equal parenting rights equal adoption rights those rights are on the books in California now and so the interest of California is. That that petition is articulating -- respect to proposition eight has to be measured. -- at the -- of our country has been cautious and and that's why we're and adherence -- -- -- -- post this on the whole country. Just can't -- respectfully Justice Scalia we are not. Our position is narrower than that our position it that the petition we have taken is about. States. -- to states that have -- -- the California perhaps other states that have granted he's right short. Of marriage. I don't -- -- -- watching your back to justice believe -- sort of points but is it position the United States that same sex marriage is not required throughout the country. We're not -- it we we are not taking the position that it is required throughout the country we think that that ought to be left open. For future -- adjudication and and other states that don't have the situation California passed. So your your position is only if -- state allows civil unions. Does it become unconstitutional. Two. Forbid same sex marriage right it may seem like -- you can go on to thank you. It's. -- our position is. I would just take got a red -- and take the word only out of that sentence win. That is true. Then equal protection clause. Forbids exclusion of same sex marriage and it's an open question otherwise if I could this get to the third reason. -- you think is quite significant. The argument here. It is -- about caution. -- argument that while we need to wait we understand that we take it seriously. But waiting. Is not a neutral act. Waiting impose his real cost in here and now it denies. That it to the parents who want to marry. The ability to -- and denies the children ironically the very thing the petitioners focus on this at the heart of the marriage relationships -- -- to wait in the rest of the country. You say it's gonna happen right now in California which you don't even have a position about whether it's required in the rest its entry if it that. With respect to a state that allows gay couples. To have. Children and to have families and then denies. Won't be stabilized it's -- -- happen on right away can those states. We're same sex couples have every legal right. That married couples do what we think what you can wait. In states where they have fewer -- grant says is an open question with respect to those states and the court should wait and see what kind of -- record -- state could -- -- California you can't make the record to justify the exclusion. In the fourth when I would make on this recognizing that these Scituate -- are not records be different elsewhere. Well they might try to make it different record about the effects on children and -- but there isn't the record to that effect here in the fourth when I would make and I do think this is significant. The set you -- the principal argument 1967 was respectful loving and that the commonwealth of Virginia advance was -- the social sciences still uncertain. About how bi racial children warfare in this world -- -- ought to apply rational basis scrutiny. And wait and I think the court recognized that there's a cost to winking and that that is going to be part of the equal protection calculus. And so. So it's what you think that's one quite fundamental various your problem about it. -- seems to me that your position that your support. Is somewhat internally inconsistent we see the argument made that. There's no problem with extending marriage to same sex couples because children raised by same sex couples are doing just fine and there's no evidence that -- being harmed. The other argument is proposition eight harms children by not allowing same sex couples from marriage vote which is it. Well I think what proposition eight does is deny the long term stabilizing. Fact that marriage. -- that's that's the argument from for marriage that but you also tell me there's been no -- shown to children of same sex couples that. California 37000 children in same sex families in California now their parents cannot. -- and that has effects on them in here and now stabilizing effect -- not there. They go to school they have to you know they don't have parents like everybody else's parents that's a real effect real cost. You will the real -- right now would be you're asking me to write these words a state it has a package -- say marriage. Or. I'm not telling you about states that. Eyewitness there's a real world affect their -- that states that are considering actual say we won't do it. Not all that someone and that would have a real effect right now. And at the moment I'm thinking it's much more harmful to the gay -- the latter than the former. If you won't give me advice as the government what how to deal with that what we. We think that. -- an -- business started my argument here. That all the warning flags protecting protections could present here this is a group that has suffered. And history apparel discrimination -- tonight. Petitioners. Said at the podium today. That there is no justification for that discrimination. In any well other than the one -- in this case. And the and so when most two factors are present those are -- paradigm considerations for the application of tight scrutiny and so. I don't want to suggest that state you're not he had only steps that states that haven't taken that step. That they're gonna have an easy time -- tight scrutiny which. Both the post where those states who lead -- who -- civil union. It would be a different case and -- I'm -- is -- that the -- ought to remain open to that case not that it would be easy for the state. To prevail in that case thank you general. I'm mr. Cooper to keep things fair I think you have ten minutes -- thank you very much do you and you might -- -- why you think we should. Taken decide this case. Yes yes your honor and that is one thing -- which I wholeheartedly agree with my friend mr. Olson. This case was a properly that is now -- properly before the court was properly and granted even if even if that is your honor. One. Could. Defendants that that specific judgment below for the ninth circuit expense and I haven't heard offered to this court. That state judicial. Redefinition. Of marriage even in. Even -- can be limited to California. Is well worthy of this court's attention particularly. Your honor -- sitcoms. From the single district court judge in a single jurisdiction. Of -- would most like pigs and here. Strokes it doesn't really focus on us. If the issue is letting the states experiment. And letting the society. Have more time. To figure out its direction. Why is seeking a case now the -- Think we could because we we let issues Kirk and so we we -- Racial. Segregation her for fifteen years. From night. 1898 to 1954. You run it it is hard to we're only talking about -- -- forty years. It is hard to imagine a case it -- -- better. More thoroughly -- should say at least. Briefed and argued that this court to issue but -- -- -- -- now wouldn't I mean we granted -- Coming sense that's essentially asking. You know why did we could answer he should -- it percolate for others. You know we've we've -- -- -- that river I think. And and in this particular case. To not grant certiorari. Is too. Essentially. Blessed judicial decision that -- That at least in the state of California. That the people have no authority to step back hit the pause button. And allow the experiments that are taking place in this country. To further mature that in fact at least in California and it's impossible to limit this ruling your honor even to California. Maybe even the solicitor general's argument. Says applies to at least eight states it's impossible to limit these these propositions to any particular jurisdiction so. So that this court would do -- being beaten making me very real decision. With respect to same sex marriage -- it should simply decide to dismiss them. -- -- -- -- Justice Kennedy inlets and let's just step back and and just consider for a moment the solicitor general's argument. He is basically submitting to the court that essentially the one compromise that is not available to the states. Is the one that the state of California has undertaken though that is to go as far as the people possibly can't. In. In an honoring and -- recognizing that the families and -- relationships of same sex couples. While still preserving the existence of traditional marriage as an institution that's. One thing that's going to OK I currently -- -- who quit now before the court today. And remember loving against Virginia was -- could be heeded by the -- not be so birth families left in his home. No marriage and -- -- it was marriage so. In -- neck in debt since. And this -- the solicitor general to be telling her that he -- there before that court today. Forget could forgive me justice Ginsburg the the case -- What what cases and what I think was my balcony and started. What will tell habitation. People of different races. It is certain sort of -- what took that -- Waiting to reach the marriage he. It's -- yes generated well. Forgive me here and I'm not sure I'm not sure -- the court's question. Yes I mean my -- maybe wrong but I think -- -- -- Can't have people. Get. Were arrested and ties with the crime. Into racial co habitation. Only -- it did definitely. Intel yes -- Yes thank you -- -- forgive me. In and end here -- I'm glad that counsel for the respondents mentioned the loving case. Because what this court. -- this court ultimately said was patently obvious. Is that. -- -- -- Of the scam. That 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 -- this question really boils down -- him. Whether or not it can be sent. For every legitimate purpose of marriage. Or opposite sex couples. And same sex couples. Indistinguishable. -- distinguish. And with all due respect that council. And into the respondents. That that is not a hard question if in fact it is true as the people of California believe that it still is true. That the natural appropriated capacity -- opposite sex couples. Continues to -- Vitally important. Benefits. And risks to society. And that's why marriage itself. Is the institution that society is always used to regulate those heterosexual. Appropriated. Pro pro creative relationships. It. The council. The -- generally said that. The man. That proposition Iraq's in California is permanent. Well it is certainly that is not. The view of of the respondents. And what we read every day this is not an issue. Now that rest in the state of California. Regardless well unless this court essentially puts it to rest. That. Democratic debate. Which is roiling throughout this country will definitely be coming back to California. It is an agonizingly. Difficult for many people -- political question. -- would submit to you. -- put that question. He's properly decided by the people themselves. -- -- Thank you counsel and -- the case is submitted.

This transcript has been automatically generated and may not be 100% accurate.

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