28 Supreme Court Gay Marriage Tea Leaves

Jun 26, 2013 1:00am

After last year’s surprise health care decision, reading the tea leaves at the Supreme Court has largely gone out of style.

So  read your own tea leaves.  Here are some interesting exchanges from the Prop 8 and Defense of Marriage Act cases, which, respectively, challenge California’s ban on gay marriage and a law that denies federal benefits to same-sex couples legally married in their states.

PROP 8 - Read more about the case HERE

1. Justice Antonin Scalia to Charles Cooper, the lawyer supporting Prop 8:

“I don’t know why you don’t mention some concrete things. If you redefine marriage to include same-sex couples, you must permit adoption by same-sex couples, and there’s considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful or not.

 

2. Justice Anthony Kennedy to Cooper:

“I think that there’s substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history or more. On the other hand, there is an immediate  legal injury … and that’s the voice of these children. There are some 40,000 children in California … that live with same-sec parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?”

 

3. Justice Stephen Breyer to Cooper:

“Now, what happens to your argument about the institution of marriage as a tool towards procreation given the fact that, in California, too, couples that aren’t gay but can’t have children get married all the time?”

 

4. Justice Elena Kagan to Cooper:

“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.”

 

5. Justice Kennedy to Theodore Olson, a lawyer opposed to Prop 8, on the issue of whether supporters of the ballot initiative have the legal right to be in court:

“These are five proponents of the measure, and if we were to accept your argument, it would give the state a one-way ratchet. The state could go in and make a defense, maybe a half-hearted defense of the statute, and then when the statute is held invalid, simply leave.”

 

6. Justice Samuel Alito to Olson on the same “standing” issue:

“Is it your position that the only people who could defend a ballot, a law that’s adopted in California through the ballot initiative are the attorney general and the governor, so that if the attorney general and the governor don’t like the ballot initiative, it will go undefended?”

 

7. Chief Justice John Roberts to Olson:

“I’m not sure that it’s right to view this as excluding a particular group. When the institution of marriage developed historically, people didn’t get around and say, ‘Let’s have this institution, but let’s keep out homosexuals.’ The institution developed to serve purposes that, by their nature, didn’t include homosexual couples.”

 

8. Justice Scalia to Olson:

“When did it become unconstitutional to exclude homosexual couples from marriage?”

 

9. Justice Alito to Olson:

“Seriously, Mr. Olson, if California provides all the substantive benefits of marriage to same-sex domestic partnerships, are you seriously arguing that … if the case before us now were from a state that doesn’t provide any of those benefits to same-sex couples, this case would come out differently?”

 

10. Chief Justice John Roberts to Olson:

“Same-sex couples have every other right. It’s just about the label.”

 

11. Justice Kennedy to Olson:

“The problem with this case is that you’re really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters. … I just wonder if the case was properly granted.”

 

12. Justice Alito to Solicitor General Donald B. Verrilli Jr:

“You want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet. We do not have the ability to see the future. On a question like that, of such fundamental importance, why should it not be left for the people, either acting through the initiative and referendums or through their elected public officials?”

 

13. Justice Sonia Sotomayor to Cooper:

“We let issues perk, and so we let racial segregation perk for 50 years from 1898 to 1954.”

 

DOMA – (Defense of Marriage Act) – Read More About the Case HERE

14. Justice Alito to Vicki Jackson, a lawyer arguing that the case should be dismissed on procedural grounds:

“The president’s position in this case is that he is going to continue to enforce DOMA, engage in conduct that he believes is unconstitutional, until this court tells him to stop.

 

15. Chief Justice John Roberts to Jackson:

“I don’t see why he [the president] doesn’t have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, ‘Oh, we’ll wait ’til the Supreme Court tells us we have no choice.’”

 

16. Justice Kennedy to Jackson:

“But it seems to me there’s injury there.”

 

17. Chief Justice Roberts to Deputy Solicitor General Sri Srinvasan:

“Is there any case where all the parties agreed with the decision below and we upheld appellate jurisdiction?”

 

18. Justice Scalia to Srinivasan:

“I’m wondering if we’re living in this new world where the attorney general can simply decide, ‘Yeah, it’s unconstitutional, but it’s not so unconstitutional that I’m not willing to enforce it.’”

 

19. Justice Kennedy to Paul D. Clement, the lawyer supporting DOMA:

“You are at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody.”

 

20. Justice Kennedy to Clement:

“It’s not really uniformity because it regulates only one aspect of marriage. It doesn’t regulate all of marriage.”

 

21. Justice Alito to Clement:

“Suppose we look just at the estate tax provision that’s at issue in this case.”

 

22. Justice Sotomayor to Clement:

“You are saying that New York’s married couples are different than Nebraska’s. … What gives the federal government the right to be concerned at all at what the definition of marriage is?”

 

23. Justice Ginsburg to Clement:

“You’re saying, ‘No, state said two kinds of marriage: the full marriage, and then this sort of skim-milk marriage.”

 

24. Justice Kagan to Clement:

“I’m going to quote from the House Report here: ‘Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.’”

 

25. Justice Kennedy to Clement:

“The question is whether or not the federal government, under our federalism scheme, has the authority to regulate marriage.”

 

26. Chief Justice Roberts to Verrilli:

“So just to be clear, you don’t think there is a federalism problem with what Congress had done in DOMA?”

 

27. Chief Justice Roberts to Verrilli:

“So that was the view of the 84 senators who voted in favor of it and the president who signed it? They were motivated by animus?”

 

28. Chief Justice Roberts to lawyer Roberta Kaplan arguing against DOMA:

“As far as I can tell, political figures are falling over themselves to endorse your side of the case.”

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