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Listen and Read: Supreme Court Prop. 8 Arguments

Tuesday, March 26, 2013

U.S. Supreme Court (Justin DC/flickr)

Listen to the full audio of oral arguments made before the Supreme Court about Proposition 8 and read the entire transcript.

P R O C E E D I N G S

(10:07 a.m.)

CHIEF JUSTICE ROBERTS: We'll hear argumentthis morning in Case 12-144, Hollingsworth v. Perry.

Mr. Cooper?

ORAL ARGUMENT OF CHARLES J. COOPER

ON BEHALF OF THE PETITIONERS

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 -

CHIEF JUSTICE ROBERTS: Mr. Cooper, we have jurisdictional and merits issues here. Maybe it'd be best if you could begin with the standing issue.

MR. COOPER: I'd be happy to, Mr. Chief Justice. Your Honor, the official proponents of Proposition 8, the initiative, have standing to defend that measure before this Court as representatives of the people and the State of California to defend the validity of a measure that they brought forward.

JUSTICE GINSBURG: Have we ever granted standing to proponents of ballot initiatives?

MR. COOPER: No, Your Honor, the Court has not done that. But the Court has never had before it a clear expression from a unanimous State's high court that -

JUSTICE GINSBURG: Well, this is -- this is -- the concern is certainly, the proponents are interested in getting it on the ballot and seeing that all of the proper procedures are followed, but once it's passed, they have no proprietary interest in it. It's law for them just as it is for everyone else. So how are they distinguishable from the California citizenry in general?

MR. COOPER: They're distinguishable, Your Honor, because the Constitution of the State of California and its election code provide, 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 the initiative process, that those official proponents also have the authority and the responsibility to defend the validity of that initiative -

JUSTICE SCALIA: I guess the attorney general of this State doesn't have any proprietary interest either, does he?

MR. COOPER: No, Your Honor, nor did -

JUSTICE SCALIA: But -- but he can defend it, can't he -

MR. COOPER: -- nor did -

JUSTICE SCALIA: -- because the law says he can defend it.

MR. COOPER: That's right, Your Honor. Nor did the legislative leaders in the Karcher case have - 

JUSTICE KAGAN: Could the State - 

MR. COOPER: -- any particular enforcement -

JUSTICE KAGAN: -- could -- could the State assign to any citizen the rights to defend a judgment of this kind?

MR. COOPER: Justice Kagan, that would be a -- 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 the -- it is the

official proponents that have a specific and -- and carefully detailed -

JUSTICE KAGAN: Well, I just -- if you would on the hypothetical: Could a State just assign to anybody the ability to do this?

MR. COOPER: Your Honor, I think it very well might. It very well might be able to decide that any citizen could step forward and represent the interests of the State and the people in that State -

CHIEF JUSTICE ROBERTS: Well, that would be -- I'm sorry, are you finished?

MR. COOPER: Yes, Your Honor.

CHIEF JUSTICE ROBERTS: Okay. That -- that may be true in terms of who they want to represent, but -- but a State can't authorize anyone to proceed in Federal court, because that would leave the definition under Article III of the Federal Constitution as to who can bring -- who has standing to bring claims up to each State. And I don't think we've ever allowed anything like that.

MR. COOPER: But, Your Honor, I guess the point I want to make is that there is no question the State has standing, the State itself has standing to represent its own interests in the validity of its own enactments. And if the State's public officials decline to do that, it is within the State's authority surely, I would submit, to identify, if not all -- any citizen or at least supporter of the measure, certainly those, that that very clear and identifiable group of citizens -

JUSTICE KENNEDY: Well, the Chief -- the Chief Justice and Justice Kagan have given a proper hypothetical to test your theory. But in this case the proponents, number one, must give their official address, they must pay money, and they must all act in unison under California law. So these five proponents were required at all times to act in unison, so that distinguishes -- and to register and to pay money for the -- so in that sense it's different from simply saying any citizen.

MR. COOPER: But of course it is, and I think the key -

JUSTICE SOTOMAYOR: But can you tell me -that's a factual background 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 laws enforced?

MR. COOPER: Your Honor, the -- the question before the Court, I would submit, is not the injury to the inpidual proponents it's the injury to the State. The -- the legislators in the Karcher case had no inpidual particularized injury, and yet this Court recognized they were proper representatives of the State's interests, the State's injury -

JUSTICE SOTOMAYOR: At least one of the amici have suggested that it seems counterintuitive to think that the State is going to delegate to people who don't have a fiduciary duty to them, that it's going to delegate the responsibility of representing the State to inpivuals who have their own views. They proposed the ballot initiative because it was their inpidual views, not necessarily that of the State. So -

MR. COOPER: Well -

JUSTICE SOTOMAYOR: -- Justice Scalia proffered the question of the Attorney General. The Attorney General has no personal interest.

MR. COOPER: True.

JUSTICE SOTOMAYOR: He has a fiduciary obligation.

MR. COOPER: The Attorney General, whether it's a fiduciary obligation or not, is in normal circumstances the representative of the State to defend the validity of the State's enactments when they are challenged in Federal court. But when that officer doesn't do so, the State surely has every authority and I would submit the responsibility to identify particularly in an initiative -- an initiative context.

JUSTICE SOTOMAYOR: Why isn't the fiduciary duty requirement before the State can designate a representative important?

MR. COOPER: Your Honor, I would submit to you that I don't think there's anything in Article III or in any of this Court's decisions that suggest that a representative of a State must be -- have a fiduciary duty, but I would also suggest -

JUSTICE SOTOMAYOR: Well, generally you don't need to specify it because generally the people who get to enforce the legislation of the government are people who are in government positions elected by the people.

MR. COOPER: And Your Honor -

JUSTICE SOTOMAYOR: Here these inpiduals are not elected by the people or appointed by the people.

MR. COOPER: And the California Supreme Court specifically addressed and 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, excuse me, in this case a 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 a precious right of every citizen, the initiative process in that State, to ensure that when public officials -- and after all, the initiative process is designed to control those very public officials, to take issues out of their hands.

And if public officials could effectively veto an initiative by refusing to appeal it, then the initiative process would be invalidated.

JUSTICE BREYER: That's -- historically, I think, 40 States, many States have what was called a public action. A public action is an action by any citizen primarily to vindicate the interest in seeing that the law is enforced. Now, that's the kind of action I think that this Court has interpreted the Constitution of the United States, case in controversy, to say that it does not lie in the Federal system.

And of course, if that kind of action is the 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 interests, we found the five citizens who most strongly want to vindicate the interest in the law being enforced and the process for making the law be enforced, well, that won't distinguish it from a public action.

But then you say, but also they are representing the State. At this point, the Dellinger brief which takes the other side of it is making a strong argument, well, they are really no more than a group of five people who feel really strongly that we should vindicate this public interest, and have good reason for thinking it.

So you have read all these arguments that it's not really the agent and so forth. What do you want to say about it?

MR. COOPER: What I want to say, Your Honor, is according to the California Supreme Court, theCalifornia Constitution says in terms that among the responsibilities of official proponents, in addition to the many other responsibilities that they step forward and they assume in the initiative process, among those responsibilities and authorities is to defend that initiative if the public officials which the initiative process is designed to control have refused to do it.

It might as well say it in those terms, Your Honor.

CHIEF JUSTICE ROBERTS: Counsel, if you want to proceed to the merits, you should feel free to do so.

MR. COOPER: Thank you very much, Your Honor. My -- my -- excuse me. As I was saying, theaccepted truth -- excuse me. The accepted truth that -that the New York high court observed is one that is changing and changing rapidly in this country as people throughout the country 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 50 States. And it does so only if the Respondents are correct that no rational, thoughtful person of goodwill could possibly disagree with them in good faith on this agonizingly difficult issue.

The issues, the constitutional issues that have been presented to the Court, are not of first impression here. In Baker v. Nelson, this Court unanimously dismissed for want of a substantial Federal question.

JUSTICE GINSBURG: Mr. Cooper, Baker v. Nelson was 1971. The Supreme Court hadn't even decided that gender-based classifications get any kind of heightened scrutiny.

MR. COOPER: That is -

JUSTICE GINSBURG: And the same-sex intimate conduct was considered criminal in many States in 1971, so I don't think we can extract much in Baker v. Nelson.

MR. COOPER: Well, Your Honor, certainly I acknowledge the precedential limitations of a summary dismissal. But Baker v. Nelson also came fairly fast on the heels of the Loving decision. And, Your Honor, I simply make the observation that it seems implausible in the extreme, frankly, for nine justices to have -- to have seen no substantial Federal question if it is true, as the Respondents maintain, that the traditional definition of marriage insofar as -- insofar as it does not include same-sex couples, insofar as it is a gender definition is irrational and can only be explained, can only be explained, as a result of anti-gay malice and a bare desire to harm.

JUSTICE KENNEDY: Do you believe this can be treated as a gender-based classification?

MR. COOPER: Your Honor, I -

JUSTICE KENNEDY: It's a difficult question that I've been trying to wrestle with it.

MR. COOPER: Yes, Your Honor. And we donot. We do not think it is properly viewed as a gender-based classification. Virtually every appellate court, State and Federal, with one exception, Hawaii, in a superseded opinion, has agreed that it is not a gender-based classification, but I guess it is gender-based in the sense that marriage itself is a gendered institution, a gendered term, and so in the same way that fatherhood is gendered more motherhood is gendered, it's gendered in that sense.

But we -- we agree that to the extent that the classification impacts, as it clearly does, same-sexcouples, that -- that classification can be viewed as being one of sexual orientation rather than -

JUSTICE SOTOMAYOR: Outside of the -outside of the marriage context, can you think of any other rational basis, reason, for a State using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision-making that the Government could make?

Denying them a job, not granting them benefits of some sort, any other decision?

MR. COOPER: Your Honor, I cannot. I do not have any -- anything to offer you in that regard. I think marriage is -

JUSTICE SOTOMAYOR: All right. If that -if that is true, then why aren't they a class? If they're a class that makes any other discrimination improper, irrational, then why aren't we treating them as a class for this one thing? Are you saying that the interest of marriage is so much more compelling than any other interest as they could have?

MR. COOPER: No, Your Honor, we certainly are not. We -- we are saying the interest in marriage and the -- and the State 's interest and society's interest in what we have framed as responsible procreation is -- is vital, but at bottom, with respect to those interests, our submission is that same-sex couples and opposite-sex couples are simply not similarly situated.

But to come back to your precise question, Ithink, Justice Sotomayor, you're probing into whether or not sexual orientation ought to be viewed as a quasi-suspect or suspect class, and our position is that it does not qualify under this Court's standard and -and traditional tests for identifying suspectedness.

The -- the class itself is -- is quite amorphous. It defies consistent definition as -- as the Plaintiffs' own experts were -- were quite vivid on. It -- it does not -- it -- it does not qualify as an accident of birth, immutability in that -- in that sense.

Again, the Plaintiffs -

JUSTICE SOTOMAYOR: So you -- so what -- I don't quite understand it. If you're not dealing withthis as a class question, then why would you say that the Government is not free to discriminate against them?

MR. COOPER: Well, Your Honor, I would think that -- that -- I think it's a -- it's a very different question whether or not the Government can proceedarbitrarily and irrationally with respect to any group of people, regardless of whether or not they qualify under this Court's traditional test for suspectedness.

And -- and the hypothetical I understood you to be offering, I would submit would create -- it would -unless there's something that -- that is not occurring to me immediately, an arbitrary and capricious distinction among similarly situated inpiduals, that -- that is not what we think is at the -- at theroot of the traditional definition of marriage.

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. 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.

But consider the California voter, in 2008, in the ballot booth, with the question before her whether or not this age-old bedrock social institution should be fundamentally redefined, and knowing that there's no way that she or anyone else could possibly know what the long-term implications of -- of profound redefinition of a bedrock social institution would be. That is reason enough, Your Honor, that would hardly be irrational for that voter to say, I believe that this experiment, which is now only fairly four years old, even in Massachusetts, the oldest State that 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 experiment is still maturing.

 

JUSTICE SCALIA: Mr. Cooper, let me -- let

me give you one -- one concrete thing. I don't know why

you 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 to what the consequences of raising a

child in a -- in a single-sex family, whether that is

harmful to the child or not. Some States do not -- do

not permit adoption by same-sex couples for that reason.

 

JUSTICE GINSBURG: California -- no,

California does.

 

JUSTICE SCALIA: I don't think we know the

answer to that. Do you know the answer to that, whether

it -- whether it harms or helps the child?

 

MR. COOPER: No, Your Honor. And there's -there's

-

 

 

JUSTICE SCALIA: But that's a possible

deleterious effect, isn't it?

 

MR. COOPER: Your Honor, it -- it is

certainly among the -

 

 

JUSTICE GINSBURG: It wouldn't be in

 

 

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California, Mr. Cooper, because that's not an issue, is

it? In California, you can have same-sex couples

adopting a child.

 

MR. COOPER: That's right, Your Honor. That

is true. And -- but -- but, Your Honor, here's -here's

the point -

 

 

JUSTICE SCALIA: I -- it's true, but

irrelevant. They're arguing for a nationwide rule which

applies to States other than California, that every

State must allow marriage by same-sex couples. And so

even though States that believe it is harmful -- and I

take no position on whether it's harmful or not, but it

is certainly true that -- that there's no scientific

answer to that question at this point in time.

 

MR. COOPER: And -- and that, Your Honor, is

the point I am trying to make, and it is the

Respondents' responsibility to prove, under rational

basis review, not only that -- that there clearly will

be no harm, but that it's beyond debate that there will

be no harm.

 

JUSTICE GINSBURG: Mr. Cooper, you are

defending -- you are opposing a judgment that applies to

California only, not to all of the States.

 

MR. COOPER: That's true, Your Honor. And

if there were a way to cabin the arguments that are

 

 

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being presented to you to California, then the concerns

about redefining marriage in California could be

confined to California, but they cannot, Your Honor.

 

JUSTICE KENNEDY: I -- I think there's -there's

substantial -- 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 or legal -- what could be a legal injury, and that's the voice of these children. There are some

40,000 children in California, according to the Red Brief, that live with same-sex 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?

 

MR. COOPER: Your Honor, I certainly would not dispute 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. It's being debated elsewhere. But on that -- on that specific question,

Your Honor, there simply is no data.

 

In fact, their expert agreed there is no data, no study, even, that would examine whether or not

 

 

 

 

 

there is 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 is simply no data at all that would

permit one to draw -- draw that conclusion.

 

I would recall, Justice Kennedy, the point

made in Romer, that under a rational basis of review,

the provision will be sustained even if it operates to

the disadvantage of a group, if it is -- if it otherwise

advances rationally a legitimate State interest.

 

CHIEF JUSTICE ROBERTS: Mr. Cooper, we will

afford you more time. You shouldn't worry about losing

your rebuttal time, but please continue on.

 

MR. COOPER: Oh -

 

 

JUSTICE BREYER: As long as you are on that,

then I would like to ask you this: Assume you could

distinguish California, suppose we accept your argument

or accept Justice Scalia's 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 marry would interfere with the vision of

marriage as procreation of children that allowing

sterile couples of different sexes to marry would not?

 

I mean, there are lots of people who get

 

 

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married who can't have children. To take a State that

does allow adoption and say -- there, what is the

justification for saying no gay marriage? Certainly not

the one you said, is it?

 

MR. COOPER: You're -

 

 

JUSTICE BREYER: Am I not clear?

 

Look, you said that the problem is marriage

that it is an institution that furthers procreation.

 

MR. COOPER: Yes, Your Honor.

 

JUSTICE BREYER: And the reason there was

adoption, but that doesn't apply to California. So

imagine I wall off California and I'm looking just

there, where you say that doesn't apply. 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.

 

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.

 

Suppose, in turn -

 

 

 

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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.)

 

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.)

 

MR. COOPER: Your Honor, society's -society's

interest in responsible procreation isn't just

 

 

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with respect to the procreative capacities of the couple

itself. The marital norm, which imposes the obligations

of fidelity and monogamy, Your Honor, advances the

interests in responsible procreation by making it more

likely that neither party, including the fertile party

to that -

 

 

JUSTICE KAGAN: Actually, I'm not even -

 

 

JUSTICE SCALIA: I suppose we could have a

questionnaire at the marriage desk when people come in

to get the marriage -- you know, Are you fertile or are

you not fertile?

 

(Laughter.)

 

JUSTICE SCALIA: I suspect this Court would

hold that to be an unconstitutional invasion of privacy,

don't you think?

 

JUSTICE KAGAN: Well, I just asked about

age. I didn't ask about anything else. That's not -we

ask about people's age all the time.

 

MR. COOPER: Your Honor, and even asking

about age, you would have to ask if both parties are

infertile. Again -

 

 

JUSTICE SCALIA: Strom Thurmond was -- was

not the chairman of the Senate committee when Justice

Kagan was confirmed.

 

(Laughter.)

 

 

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MR. COOPER: Very few men -- very few men

outlive their own fertility. So I just -

 

 

JUSTICE KAGAN: A couple where both people

are over the age of 55 -

 

 

MR. COOPER: I -

 

 

JUSTICE KAGAN: A couple where both people

are over the age of 55.

 

MR. COOPER: And Your Honor, again, the

marital norm which imposes upon that couple the

obligation of fidelity -

 

 

JUSTICE SOTOMAYOR: I'm sorry, where is

this -

 

 

CHIEF JUSTICE ROBERTS: I'm sorry, maybe you

can finish your answer to Justice Kagan.

 

 

JUSTICE SOTOMAYOR: I'm sorry.

 

MR. COOPER: It's designed, Your Honor, to

make it less likely that either party to that -- to that

marriage will engage in irresponsible procreative

conduct outside of that marriage. Outside of that

marriage. That's the marital -- that's the marital

norm. Society has an interest in seeing a 55-year-old

couple that is -- just as it has an interest of seeing

any heterosexual couple that intends to engage in a

prolonged period of cohabitation to reserve that until

they have made a marital commitment, a marital

 

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commitment. So that, should that union produce any

offspring, it would be more likely that that child or

children will be raised by the mother and father who

brought them into the world.

 

JUSTICE GINSBURG: Mr. Cooper, we said that

somebody who is locked up in prison and who is not going

to get out has a right to marry, has a fundamental right

to marry, no possibility of procreation.

 

MR. COOPER: Your Honor is referring, I'm

sure, to the Turner case, and -

 

 

JUSTICE GINSBURG: Yes.

 

MR. COOPER: -- I think that, with due

respect, Justice Ginsburg, way over-reads -- way

over-reads Turner against Safley. That was a case in

which the prison at issue -- and it was decided in the

specific context of a particular prison where there were

both female and male inmates, many of them minimum

security inmates. It was dealing with a regulation,

Your Honor, that had previously permitted marriage in

the case of pregnancy and childbirth.

 

The Court -- the Court here emphasized that,

among the incidents of marriage that are not destroyed

by that -- at least that prison context, was the

expectation of eventual consummation of the marriage and

legitimation of -- of the children. So that -

 

 

 

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CHIEF JUSTICE ROBERTS: Thank you,

Mr. Cooper.

 

MR. COOPER: Thank you, Mr. Chief Justice.

 

CHIEF JUSTICE ROBERTS: Mr. Olson?

 

ORAL ARGUMENT OF THEODORE B. OLSON

ON BEHALF OF THE RESPONDENTS

MR. OLSON: Thank you, Mr. Chief Justice,

and may it please the Court:

 

I know that you will want me to spend a

moment or two addressing the standing question, but

before I do that, I thought that it would be important

for this Court to have Proposition 8 put in context,

what it does. It walls-off gays and lesbians from

marriage, the most important relation in life, according

to this Court, thus stigmatizing a class of Californians

based upon their status and labeling their most

cherished relationships as second-rate, different,

unequal, and not okay.

 

CHIEF JUSTICE ROBERTS: Mr. Olson, I cut off

your friend before he could get into the merits.

 

MR. OLSON: I was trying to avoid that, Your

Honor.

 

CHIEF JUSTICE ROBERTS: I know -

 

 

(Laughter.)

 

CHIEF JUSTICE ROBERTS: Well, I think it's

 

 

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only fair to treat you the same. Perhaps you could

address your jurisdictional argument?

 

MR. OLSON: Yes. I think that our

jurisdictional argument is, as we set forth in the

brief, California cannot create Article III standing by

designating whoever it wants to defend the State of

California in connection with the ballot.

 

JUSTICE KENNEDY: But this is not whoever it

wants. These are five proponents of -- 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 -- and then when the 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 ratchet as it favors

the State, and allows governors and other constitutional

officers in different States to thwart the initiative

process.

 

MR. OLSON: That's the -- that's the way the

California Supreme Court saw it with respect to

California law. The governor and the Attorney General

of California are elected to act in the best interests

of the State of California. They made a professional

judgment given their obligations as officers of the

 

 

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State of California.

 

The California Supreme Court has said that

proponents -- and by the way, only four of the five are

here. Dr. Tam withdrew from the case because of some -many

things he said during the election campaign.

 

JUSTICE ALITO: Well, Mr. Olson, 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? Is that

your position?

 

MR. OLSON: I don't -- I don't think it's

quite that limited. I think one of your colleagues

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

represent the State of California along -

 

 

JUSTICE SCALIA: Who -- who would appoint

him? The same governor that didn't want to defend the

plebiscite?

 

MR. OLSON: Well, that happens all the time.

As you recall in the case of -- well, let's not spend

too much time on independent counsel provisions, but -

 

 

 

30

 

 

 

 

 

(Laughter.)

 

MR. OLSON: The governor -- the government

of the State of California frequently appoints an

attorney where there's a perceived conflict of

interest -

 

 

JUSTICE SCALIA: I suppose -

 

 

MR. OLSON: -- and that person would have a

responsibility for the State and might have

responsibility for the attorneys' fees.

 

CHIEF JUSTICE ROBERTS: I suppose there

might be people out there with their own personal

standing, someone who performs marriages and would like

that to remain open to everyone but would prefer not to

perform same-sex marriages, or other people. We seem to

be addressing the case as if the only options are the

proponents here or the State. I'm not sure there aren't

other people out there with inpidual personalized

injury that would satisfy Article III.

 

MR. OLSON: There might well be in -- in a

different case. 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 -- maybe it was a binary system of people

got resources and other people didn't get resources,

there could be standing. Someone would show actual

 

 

31

 

 

 

 

 

injury.

 

The point, I guess, at the bottom of this is

the Supreme Court, this Court, decided in Raines v. Byrd

that Congress couldn't specify members of Congress in

that context even where the measure depleted or

diminished powers of Congress -

 

 

JUSTICE SOTOMAYOR: Mr. Olson, I think the

bottom line -

 

 

JUSTICE ALITO: The States are not bound by

the same separation of powers doctrine that underlies

the Federal Constitution. You couldn't have a Federal

initiative, for example. They're free of all that.

 

So start from the proposition that a State

has standing to defend the constitutionality of a State

law un- -- beyond dispute. The question then is, who

represents the State?

 

Now, in a State that has initiative, 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 do, because you're 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

 

 

32

 

 

 

 

 

left is the proposition that the State -- State law can

choose some other person, some other group to defend the

constitutionality of a 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?

 

MR. OLSON: The only -- 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, it could be four of the proponents they

could have an interest other than the State because they

have no fiduciary responsibility to the State they may

be incurring attorneys' fees on behalf of the State or

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 it's a

close one, because California thinks that this is the

system. The California Supreme Court thought that this

was a system that would be a default system. I'm

suggesting from your decisions with respect to Article

III that that takes more than that under -

 

 

JUSTICE SOTOMAYOR: Mr. Olson, I think that

 

 

33

 

 

 

 

 

you're not answering the fundamental fear. And so -and

-- and the amici brief that sets forth this test of

fiduciary duty doesn't quite either.

 

The assumption is that there are not

executive officials who want to defend the law. They

don't like it. No one's going to do that. So how do

you get the law defended in that situation?

 

MR. OLSON: I don't have an answer to that

question unless there's an appointment process either

built into the system where it's an officer of

California or -

 

 

JUSTICE SOTOMAYOR: So why -- why isn't this

viewed as an appointment process, that the in -- the

ballot initiators have now become that body?

 

MR. OLSON: And that's the argument -

 

 

JUSTICE SOTOMAYOR: Is that your argument -

 

 

MR. OLSON: That's our -- that's the

argument our opponents make. But it -- but it must be

said that it happens all of the time, that Federal

officials and State officials decide not to enforce a

statute, to enforce a statute in certain ways. We don't

then come in and decide that there's someone else ought

to be in court for every particular -

 

 

JUSTICE BREYER: What the brief says is, of

course, you can appoint people. It's not just that you

 

 

34

 

 

 

 

 

appoint them, it's that the State's interest, when it

defends a law, is the interest in executing the law of

the State. So all you have to do is give a person that

interest. But when a person has the interest of

defending this law, as opposed to defending the law of

the State of California, there can be all kinds of

conflicts, all kinds of situations.

 

That's what I got out of the brief. So give

the person that 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.

 

MR. OLSON: Yeah, I don't -

 

 

JUSTICE BREYER: Why is it missing here?

 

MR. OLSON: It is -- what is missing here,

because you're not an officer of the State of

California, you don't have a fiduciary duty to the State

of California, you're not bound by the ethical standards

of an officer of the State of California to represent

the State of California, you could have conflicts of

interest. And as I said, you'd be -- could be incurring

enormous legal fees on behalf of the State when the

State hasn't decided to go that route. I think -

 

 

CHIEF JUSTICE ROBERTS: You should feel free

to move on to the merits.

 

MR. OLSON: Thank you, Your Honor. As I

 

 

35

 

 

 

 

 

pointed out at the -- at the outset, this is a measure

that walls off the institution of marriage, which is not

society's right. It's an inpidual right that this

Court again and again and again has said the right to

get married, the 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 the

right to get married under the Constitution, you've

described it as marriage, procreation, family, other

things like that. So the procreation aspect, the

responsibility or ability or interest in procreation is

not a part of the right to get married. Now, that -

 

 

CHIEF JUSTICE ROBERTS: I'm not sure,

counsel, that it makes -- 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.

 

It is -- yes, you can say that it serves

some of the other interests where it makes sense to

include them, but not all the interests. And it seems

 

 

36

 

 

 

 

 

to me, your friend argues on the other side, if you have

an institution that pursues additional interests, you

don't have to include everybody just because some other

aspects of it can be applied to them.

 

MR. OLSON: Well, there's a couple of

answers to that, it seems to me, Mr. Chief Justice. In

this case, that decision to exclude gays and lesbians

was made by the State of California.

 

CHIEF JUSTICE ROBERTS: Oh, that's only

because Proposition 8 came 140 days after the California

Supreme Court issued its decision.

 

MR. OLSON: That's right.

 

CHIEF JUSTICE ROBERTS: And don't you think

it's more reasonable to view it as a change by the

California Supreme Court of this institution that's been

around since time immemorial?

 

MR. OLSON: The California Supreme Court,

like this Supreme Court, decides what the law is. The

California Supreme Court decided that the Equal

Protection and Due Process Clauses of that California

Constitution did not permit excluding gays and lesbians

from the right to get married -

 

 

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

 

 

37

 

 

 

 

 

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.)

 

JUSTICE SCALIA: When do you think it became

unconstitutional? Has it always been unconstitutional?

 

MR. OLSON: When the -- when the California

Supreme Court faced the decision, which it had never

faced before, is -- does excluding gay and lesbian

citizens, who are a class based upon their status as

homosexuals -- is it -- is it constitutional -

 

 

 

38

 

 

 

 

 

JUSTICE SCALIA: That -- that's not when it

became unconstitutional. That's when they acted in an

unconstitutional matter -- in an unconstitutional

matter. When did it become unconstitutional to prohibit

gays from marrying?

 

MR. OLSON: That -- they did not assign a

date to it, Justice Scalia, as you know. What the court

decided was the case that came before it -

 

 

JUSTICE SCALIA: I'm not talking about the

California Supreme Court. I'm talking about your

argument. You say it is now unconstitutional.

 

MR. OLSON: Yes.

 

JUSTICE SCALIA: Was it always

unconstitutional?

 

MR. OLSON: It was constitutional when we -as

a culture determined that sexual orientation is a

characteristic of inpiduals that they cannot control,

and that that -

 

 

JUSTICE SCALIA: I see. When did that

happen? When did that happen?

 

MR. OLSON: There's no specific date in

time. This is an evolutionary cycle.

 

JUSTICE SCALIA: Well, how am I supposed to

know how to decide a case, then -

 

 

MR. OLSON: Because the case that's before

 

 

39

 

 

 

 

 

you -

 

 

JUSTICE SCALIA: -- if you can't give me a

date when the Constitution changes?

 

MR. OLSON: -- in -- the case that's before

you today, California decided -- the citizens of

California decided, after the California Supreme Court

decided that inpiduals had a right to get married

irrespective of their sexual orientation in California,

and then the Californians decided in Proposition 8, wait

a minute, we don't want those people to be able to get

married.

 

CHIEF JUSTICE ROBERTS: So -- so your

case -- your case would be different if Proposition 8

was enacted into law prior to the California Supreme

Court decision?

 

MR. OLSON: I would make -- I would make

the -- also would make the -- that distinguishes it in

one respect. But also -- also -- I would also make the

argument, Mr. Chief Justice, that we are -- this -marriage

is a fundamental right and we are making a

classification based upon a status of inpiduals, which

this Court has repeatedly decided that gays and lesbians

are defined by their status. There is no question about

that.

 

JUSTICE SCALIA: So it would be

 

 

40

 

 

 

 

 

unconstitutional even in States that did not allow

civil unions?

 

MR. OLSON: We do, we submit that. You

could write a narrower decision.

 

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

inpiduals -- 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.

 

MR. OLSON: But what I have before you now,

the case that's before you today, is whether or not

 

 

41

 

 

 

 

 

California can take a class of inpiduals based upon

their characteristics, their 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 to say

procreation or anything of that nature, because

procreation is not a part of the right to get married.

 

JUSTICE KENNEDY: That's really -- that's a

broad argument that you -- that's in this case if the

Court wants to reach it. The rationale of the Ninth

Circuit was much more narrow. It basically said that

California, which has been more generous, more open to

protecting same-sex couples than almost any State in the

Union, just didn't go far enough, and it's being

penalized for not going far enough.

 

That's a very odd rationale on which to

sustain this opinion.

 

MR. OLSON: This Court has always looked

into the context. In, for example, the New Orleans case

involving the gambling casinos and advertising, you look

at the context of what was permitted, what was not

permitted, and does that rationalization for prohibiting

in that case the advertising, in this case prohibiting

the relationship of marriage, does it make any sense in

 

 

42

 

 

 

 

 

the context of what exists?

 

JUSTICE ALITO: Seriously, Mr. Olson,

if California provides all the substantive benefits of

marriage to same-sex domestic partnerships, are you

seriously arguing that if California -- if the State -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?

 

MR. OLSON: No, I don't think it would come

out differently, because of the fundamental arguments

we're making with respect to 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 of

rights of people to live together and that sort of

thing, those arguments can't be made on behalf of

California, because California's already made a decision

that gay and lesbian inpiduals are perfectly suitable

as parents, they're perfectly suitable to adopt, they're

raising 37,000 children 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 married.

 

JUSTICE ALITO: I don't think you can have

it both ways. Either this case is the same, this would

 

 

43

 

 

 

 

 

be the same if this were Utah or Oklahoma, or it's

different because it's California and California has

provided all these -

 

 

MR. OLSON: I -- I think that it's not that

we're arguing that those are inconsistent. If 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 the

State comes forth with certain arguments -- Utah might

come forth with certain justifications. California

might come forth with others. But the fact is that

California can't make the arguments about adoption or

child-rearing or people living together, because they

have already made policy decisions. So that doesn't

make them inconsistent.

 

CHIEF JUSTICE ROBERTS: So it's just

about -- it's just about the label in this case.

 

MR. OLSON: The label is -

 

 

CHIEF JUSTICE ROBERTS: Same-sex couples

have every other right, it's just about the label.

 

MR. OLSON: The label "marriage" means

something. Even our opponents -

 

 

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,

 

 

44

 

 

 

 

 

 

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 -

 

 

CHIEF JUSTICE ROBERTS: How do we know -how

do we know that that's the reason, or a necessary

part of the reason, that we've recognized marriage as a

fundamental right? That's -- you've emphasized that and

you've said, well, it's because of the emotional

commitment. Maybe it is the procreative aspect that

makes it a fundamental right.

 

MR. OLSON: But you have said that marriage

is a fundamental right with respect to procreation and

at the same level getting married, privacy -- you said

that in the Zablocki case, you said that in the Lawrence

 

 

45

 

 

 

 

 

case, and you said it in other cases, the Skinner case,

for example.

 

Marriage is put on a pro- -- equal footing

with procreational aspects. And your -- this Court is

the one that has said over and over again that marriage

means something to the inpidual: The privacy,

intimacy, and that it is a matter of status and

recognition in this -

 

 

JUSTICE SOTOMAYOR: Mr. Olson, the bottom

line that you're being asked -- and -- and it is one

that I'm interested in the answer: If you say that

marriage is a fundamental right, what State restrictions

could ever exist? Meaning, what State restrictions with

respect to the number of people, with respect to -- that

could get married -- the incest laws, the mother and

child, assuming that they are the age -- I can -- I can

accept that the State has probably an overbearing

interest on -- on protecting a child until they're of

age to marry, but what's left?

 

MR. OLSON: Well, you've said -- you've said

in the cases decided by this Court that the polygamy

issue, multiple marriages raises questions about

exploitation, abuse, patriarchy, issues with respect to

taxes, inheritance, child custody, it is an entirely

different thing. And if you -- if a State prohibits

 

 

46

 

 

 

 

 

polygamy, it's prohibiting conduct.

 

If it prohibits gay and lesbian citizens

from getting married, it is prohibiting their exercise

of a right based upon their status. It's selecting them

as a class, as you described in the Romer case and as

you described in the Lawrence case and in other cases,

you're picking out a group of inpiduals to deny them

the freedom that you've said is fundamental, important

and vital in this society, and it has status and

stature, as you pointed out in the VMI case. There's

a -- there's a different -

 

 

JUSTICE SOTOMAYOR: Is there any way to

decide this case in a principled manner that is limited

to California only?

 

MR. OLSON: Yes, the Ninth Circuit did that.

You can decide the standing case that limits it to the

decision of the district court here. You could decide

it as the Ninth Circuit did -

 

 

JUSTICE KENNEDY: The problem -- the problem

with the case is that you're really asking, particularly

because of the sociological evidence you cite, for us to

go into uncharted waters, and you can play with that

metaphor, there's a wonderful destination, it is a

cliff. Whatever that was.

 

(Laughter.)

 

 

47

 

 

 

 

 

JUSTICE KENNEDY: But you're -- you're doing

so in a -- in a case where the opinion is very narrow.

Basically that once the State goes halfway, it has to go

all the way or 70 percent of the way, and you're doing

so in a case where there's a substantial question on -on

standing. I just wonder if -- if the case was

properly granted.

 

MR. OLSON: Oh, the case was certainly

properly granted, Your Honor. I mean, there was a full

trial of all of these issues. There was a 12-day trial,

the judge insisted on evidence on all of these

questions. This -- this is a -

 

 

JUSTICE KENNEDY: But that's not the issue

the Ninth Circuit decided.

 

MR. OLSON: The issue -- yes, the Ninth

Circuit looked at it and decided because of your

decision on the Romer case, this Court's decision on the

Romer case, that it could 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 -- and I don't

want to abuse the Court's indulgence, that what I -- you

suggested that this is uncharted waters. It was

uncharted waters when this Court, in 1967, in the Loving

decision said that interracial -- prohibitions

 

 

48

 

 

 

 

 

on interracial marriages, which still existed in 16

States, were unconstitutional.

 

JUSTICE KENNEDY: It was hundreds of years

old in the common law countries. This was new to the

United States.

 

MR. OLSON: And -- and what we have here -

 

 

JUSTICE KENNEDY: So -- so that's not

accurate.

 

MR. OLSON: I -- I respectfully submit that

we've under -- we've learned to understand more about

sexual orientation and what it means to inpiduals.

guess the -- the language that Justice Ginsburg used at

the closing of the VMI case is an important thing, it

resonates with me, "A prime part of the history of our

Constitution is the story of the extension of

constitutional rights to people once ignored or

excluded."

 

CHIEF JUSTICE ROBERTS: Thank you, counsel.

General Verrilli?

ORAL ARGUMENT OF DONALD B. VERRILLI, JR.,

FOR UNITED STATES, AS AMICUS CURIAE,

SUPPORTING THE RESPONDENTS

GENERAL VERRILLI: Mr. Chief Justice, and

may it please the Court

Proposition 8 denies gay and lesbian persons

 

 

49

 

 

 

 

 

the equal protection of the laws -

 

 

CHIEF JUSTICE ROBERTS: You don't think

you're going to get away with not starting with the

jurisdictional question, do you?

 

(Laughter.)

 

GENERAL VERRILLI: As an amicus, I thought I

might actually, Your Honor. And -- and, of course, we

didn't take a position on standing. We didn't -- we

didn't brief it, we don't have a formal position on

standing. But I will offer this observation based on

the discussion today and the briefing.

 

We do think that while it's certainly not

free of doubt, that the better argument is that there is

not Article III standing here because -- I don't want to

go beyond just summarizing our position, but -- because

we don't have a formal position.

 

But we do think that with respect to

standing, that at this point with the initiative process

over, that Petitioners really have what is more in the

nature of a generalized grievance and because they're

not an agent of the State of California or don't have

any other official tie to the State that would -- would

result in any official control of their litigation, that

the better conclusion is that there's not Article III

standing here.

 

 

50

 

 

 

 

 

JUSTICE ALITO: Well, tomorrow you're going

to be making a standing argument that some parties think

is rather tenuous, but today, you're -- you're very

strong for Article III standing?

 

GENERAL VERRILLI: Well, we said this was

a -- we said this was a close question, and -- and our

interests are, Justice Alito, in tomorrow's issues where

we have briefed the matter thoroughly and will be

prepared to discuss it with the Court tomorrow.

 

With 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 8 requires the

Court to ignore those warning flags and instead apply

highly deferential Lee Optical rational basis review as

though Proposition 8 were on a par with the law of

treating opticians less favorably than optometrists,

when it really is the polar opposite of such a law.

 

JUSTICE GINSBURG: General Verrilli, I could

understand your argument if you were talking about the

entire United States, but you -- your brief says it's

only eight or nine States, the States that permit civil

unions, and that's -- brings up a question that was

asked before. So a State that has made considerable

 

 

51

 

 

 

 

 

progress has to go all the way, but at least the

Government's position is, if it has done -- the State

has done absolutely nothing at all, then it's -- it can

do -- do as it will.

 

GENERAL VERRILLI: That gets to my second

point, Your Honor, which is that I do think the problem

here with the arguments that Petitioners are advancing

is that California's own laws do cut the legs out from

under all of the justifications that Petitioners have

offered in defense of Proposition 8, and I understand

Your Honor's point and the point that Justice Kennedy

raised earlier, but I do think this Court's equal

protection jurisprudence requires the Court to evaluate

the interests 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 and adoption, full

access to assistive reproduction, and therefore, the

argument about the State's interests that -- that

Petitioners advance have to be tested against that

reality, and -- and they just don't measure up. None of

the -

 

 

JUSTICE BREYER: Well, the argument -

 

 

 

52

 

 

 

 

 

JUSTICE ALITO: None of the -

 

 

CHIEF JUSTICE ROBERTS: Justice Breyer.

 

JUSTICE BREYER: What is the one -- look, a

State that does nothing for gay couples 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

quite a lot, but which are their good arguments, in your

opinion? I mean, take a State that really does nothing

whatsoever.

 

They have no benefits, no nothing, no

nothing. Okay? And moreover, if -- if you're right,

even in California, if they have -- if they're right or,

you know, if a pact is enough, they won't get Federal

benefits, those that are tied to marriage, because

they're not married. So -- so a State that does nothing

hurts them much more, and yet your brief seems to say

it's more likely to be justified under the Constitution.

 

I'd like to know with some specificity how

that could be.

 

GENERAL VERRILLI: Well, because you have to

measure the -- under the standard of equal protection

scrutiny that we think this Court's cases require.

 

JUSTICE BREYER: I know the principle, but

I'm saying which are their good arguments, in your

opinion, that would be good enough to overcome for the

 

 

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State that does nothing, but not good enough to overcome

California where they do a lot?

 

GENERAL VERRILLI: Well, we -- what we're -what

we're saying about that is that we're not prepared

to close the door to an argument in another State where

the State's interests haven't cut the legs out from

under the arguments. 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 applied and they didn't need to show

anything, and so they didn't try to show anything.

 

 

Our view is that heightened scrutiny should

apply, and so I don't want to -- I don't want to kid

about this, we understand, that would be a very heavy

burden for a State to meet. All we're suggesting is

that in a situation in which the -- the State interests

aren't cut out from under it, as they -- as they are

here, that that issue ought to remain open for a future

case. And I -- and I think the caution rationale would

be the one place where we might leave it open. Because

you can't leave it open in this case.

 

JUSTICE SOTOMAYOR: General, there is an

irony in that, which is the States that do more have

 

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less rights.

 

GENERAL VERRILLI: Well -- well, I

understand that, Your Honor, but I do think that you

have to think about the claim of right on the other side

of the equation here. And in this situation,

California -- the argument here that -- that gay and

lesbian couples can be denied access to marriage on the

ground of an interest in responsible procreation and

child rearing just can't stand up given that the parents

have full equality, the gay and lesbian parents have

full equality apart from -

 

 

JUSTICE ALITO: You want us to assess the

effects of same-sex marriage, the potential effects

on -- of same-sex marriage, the potential -- the effects

of Proposition 8. But what is your response to the

argument which has already been mentioned about the need

to be cautious in light of the newness of the -- the

concept of -- of same-sex marriage.

 

The one thing that the parties in this case

seem to agree on is that marriage is very important.

It's thought to be a fundamental building block of

society and its preservation essential for the

preservation of society. Traditional marriage has been

around for thousands of years. Same-sex marriage is

very new. I think it was first adopted in The

 

 

55

 

 

 

 

 

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 a good thing, as the

supporters of Proposition 8 apparently believe.

 

But 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? I mean we -- we are not -- 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 initiatives and referendums or

through their elected public officials?

 

GENERAL VERRILLI: I have four points I

would like to make to that in response to that,

Justice Alito, and I think they are all important.

 

First, California did not through

Proposition 8 do what my friend Mr. Cooper said and push

a pause button. They pushed a delete button. This is a

permanent ban. It's in the Constitution. It's supposed

to take this issue out from the legislative process. So

that's the first point.

 

Second -

 

 

JUSTICE ALITO: Well, just in response to

that, of course the Constitution could be amended,

 

 

56

 

 

 

 

 

and -- and I think I read that the California

 

Constitution has been amended 500 times.

 

GENERAL VERRILLI: But the -

 

 

JUSTICE ALITO: So it's not exactly like the

 

U.S. Constitution.

GENERAL VERRILLI: But it does -- of course

not. But it is -- but the aim of this is to take it out

of the normal legislative process.

 

The second point is that, with respect to

concerns that Your Honor has 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 Petitioners are articulating with

respect to Proposition 8, has to be measured in that

light.

 

JUSTICE SCALIA: Yeah, but the rest of the

country has been cautious.

 

GENERAL VERRILLI: And -- and that's why -

 

 

JUSTICE SCALIA: And we're -- and you are

asking us to impose this on the whole country, not just

California.

 

GENERAL VERRILLI: No, respectfully

Justice Scalia, we are not. Our position is narrower

than that. Our position -- the position we have taken,

 

 

57

 

 

 

 

 

is about States, it applies to States that have, like

California and perhaps other States, that have granted

these rights short of marriage, but -

 

 

CHIEF JUSTICE ROBERTS: I don't want to -- I

want you to get back to Justice Alito's other points,

but is it the position of the United States that

same-sex marriage is not required throughout the

country?

 

GENERAL VERRILLI: We are not -- we are not

taking the position that it is required throughout the

country. We think that that ought to be left open for a

future adjudication in other States that don't have the

situation California has.

 

JUSTICE SCALIA: So your -- your position is

only if a State allows civil unions does it become

unconstitutional to forbid same-sex marriage, right?

 

GENERAL VERRILLI: I -- I see my red light

is on.

 

CHIEF JUSTICE ROBERTS: Well, you can go on.

 

GENERAL VERRILLI: Thank you.

 

Our position is -- I would just take out a

red pen and take the word "only" out of that sentence.

When that is true, then the Equal Protection Clause

forbids the exclusion of same-sex marriage, and it's an

open question otherwise.

 

 

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And if I could just get to the third reason,

which I do think is quite significant.

 

The argument here about caution is an

argument that, well, we need to wait. We understand

that. We take it seriously. But waiting is not a

neutral act. Waiting imposes real costs in the here and

now. It denies to the -- to the parents who want to

marry the ability to marry, and it denies to the

children, ironically, the very thing that Petitioners

focus on is at the heart of the marriage relationship.

 

CHIEF JUSTICE ROBERTS: But you are willing

to wait in the rest of the country. You saying it's got

to happen right now in California, but you don't even

have a position about whether it's required in the rest

of the country.

 

 

GENERAL VERRILLI: If -- with respect to a

State that allows gay couples to have children and to

have families and then denies the stabilizing effect -

 

 

CHIEF JUSTICE ROBERTS: So it's got to

happen right away in those States where same-sex couples

have every legal right that married couples do.

 

GENERAL VERRILLI: Well, we think -

 

 

CHIEF JUSTICE ROBERTS: But you can wait in

States where they have fewer legal rights.

 

GENERAL VERRILLI: What i said is it's an

 

59

 

 

 

 

 

open question with respect to those States and the Court

should wait and see what kind of a record a State could

make. But in California you can't make the record to

justify the exclusion.

 

And the fourth point I would make on this,

recognizing that these situations are not -

 

 

JUSTICE SOTOMAYOR: How would the record be

different elsewhere?

 

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 -

 

 

GENERAL VERRILLI: Sure.

 

CHIEF JUSTICE ROBERTS: -- I -- it seems to

 

 

60

 

 

 

 

 

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-se

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-se

couples to marriage. Which is it?

 

GENERAL VERRILLI: Well, I -- I think what

Proposition 8 does is deny the long-term stabilizing

effect that marriage brings. That's -- that's the

argument for -- for marriage, that -

 

 

CHIEF JUSTICE ROBERTS: But you also tell me

there has been no harm shown to children of same-se

couples.

 

GENERAL VERRILLI: California -- there are

37,000 children in same-sex families in California now.

Their parents cannot marry and that has effects on them

in the here and now. A stabilizing effect is not there.

When they go to school, they have to, you know -- they

don't have parents like everybody else's parents.

That's a real effect, a real cost in the here and now.

 

JUSTICE BREYER: Well, the real cost right

now would be you're asking me to write these words: "A

State that has a pact has to say 'marriage,'" but I'm

 

 

61

 

 

 

 

 

not telling you about States that don't. Well, I would

guess there is a real-world effect there, too. That

States that are considering pacts will all say "we won't

do it," or not all, but some would. And that would have

a real effect right now. And at the moment, I'm

thinking it's much more harmful to the gay couple, the

latter than the former. But you won't give me advice as

the Government as to how to deal with that.

 

GENERAL VERRILLI: Well, we -- we think

that, as I started my argument, Your Honor, that all the

warning flags for exacting equal protection scrutiny are

present here. This is a group that has suffered a

history of terrible discrimination. The Petitioners

don't deny it.

 

Petitioners said at the podium today that

there is no justification for that discrimination in any

realm other than the one posed in this case, and the -and

so when those two factors are present, those are

paradigm considerations for the application of

heightened scrutiny, and so I don't want to suggest that

the States that haven't taken those steps -

 

 

JUSTICE SOTOMAYOR: But they are not the

only ones.

 

GENERAL VERRILLI: -- that States that

haven't taken this step, that they are going to have an

 

 

62

 

 

 

 

 

easy time meeting heightened scrutiny, which I think has

to apply -

 

 

JUSTICE GINSBURG: Suppose one of those

States repeals its civil union laws?

 

GENERAL VERRILLI: It would be a different

case. And all I'm saying is that the door ought to

remain open to that case, not that it would be easy for

the State to prevail in that case.

 

CHIEF JUSTICE ROBERTS: Thank you, General.

Mr. Cooper, to keep things fair, I think you

have 10 minutes.

REBUTTAL ARGUMENT OF CHARLES J. COOPER

 

ON BEHALF OF THE PETITIONERS

 

 

MR. COOPER: Thank you very much.

 

JUSTICE KENNEDY: And you might address why

you think we should take and decide this case.

 

MR. COOPER: Yes, Your Honor, and that is

the one thing on which I wholeheartedly agree with my

friend Mr. Olson. This case was properly -- is now

properly before the Court and was properly granted, even

if, even if, Your Honor, one could defend the -- the

specific judgment below for the Ninth Circuit, a defense

that I haven't heard offered to this Court. Judicial

redefinition of marriage even in -- even if it can be

limited to California, is well worthy of this Court's

 

63

 

 

 

 

 

attention, particularly, Your Honor, as it come from a

 

single district court judge in a single jurisdiction.

 

I would also like -

 

 

JUSTICE SOTOMAYOR: I think that begs

your -- Mr. Olson doesn't really focus on this. If the

issue is letting the States experiment and letting the

society have more time to figure out its direction, why

is taking a case now the answer?

 

MR. COOPER: Because, Your Honor -

 

 

JUSTICE SOTOMAYOR: We let issues perk, and

so we let racial segregation perk for 50 years from 1898

to 1954.

 

MR. COOPER: Your Honor, it is hard to -

 

 

JUSTICE SOTOMAYOR: And now we are only

talking about, at most, four years.

 

MR. COOPER: It is hard to imagine a case

that would be better, or more thoroughly, I should say,

at least, briefed and argued to this Court.

 

JUSTICE SCALIA: It's too late for that, too

late for that now, isn't it? I mean, we granted cert.

I mean, that's essentially asking, you know, why did we

grant cert. We should let it percolate for another -you

know, we -- we have crossed that river, I think.

 

MR. COOPER: And in this particular case, to

not grant certiorari is to essentially bless a judicial

 

 

64

 

 

 

 

 

decision that there -- that at least in the State of

California, 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, even

the Solicitor General's argument, he says, applies to at

least eight States.

 

It's impossible to limit these propositions

to any particular jurisdiction, so this Court would be

making a very real decision with respect to same-se

marriage if it should simply decide to dismiss the writ

as improvidently granted, Justice Kennedy.

 

And let's just step back 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

that is, to go as far as the people possibly can in

honoring and recognizing the families and the

relationships of same-sex couples, while still

preserving the existence of traditional marriage as an

institution. That's the one thing that's off the table.

 

JUSTICE GINSBURG: I thought he was saying,

Mr. Cooper, that it's not before the Court today. And

 

 

65

 

 

 

 

 

remember Loving against Virginia was preceded by the

McLaughlin case. So first there was the question of no

marriage, and then there was marriage.

 

So, in that sense I understood the Solicitor

General to be telling us that case is not before the

Court today.

 

MR. COOPER: Forgive me, Justice Ginsburg.

The case of -- what case isn't before the Court?

 

JUSTICE GINSBURG: I think it was McLaughlin

against Florida.

 

MR. COOPER: Yes.

 

JUSTICE GINSBURG: It was cohabitation of

people of different races.

 

MR. COOPER: Certainly.

 

JUSTICE GINSBURG: And the Court took that

case and waited to reach the merits case.

 

MR. COOPER: It's -- yes, Your Honor. And

well, forgive me, Your Honor. I'm not sure I'm

following the Court's question.

 

JUSTICE GINSBURG: I may -- my memory may be

wrong, but I think the case was that people of different

races were arrested and charged with the crime of

interracial cohabitation. And the Court said that that

was invalid.

 

MR. COOPER: Yes.

 

 

66

 

 

 

 

 

JUSTICE GINSBURG: Unlawful.

 

MR. COOPER: Yes. Thank you, Your Honor.

Forgive me. And, you know, I'm glad that counsel for

the Respondents mentioned the Loving case, because what

this Court -- what this Court ultimately said was

patently obvious, is that the colors of the skin of the

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.

 

That's what this question really boils down

here, whether or not it can be said that for every

legitimate purpose of marriage, are opposite-sex couples

and same-sex couples indistinguishable,

indistinguishable. And with all due respect to counsel

and to the Respondents, 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 procreative capacity of opposite-sex couples

continues to pose vitally important benefits and risks

to society, and that's why marriage itself is the

institution that society has always used to regulate

those heterosexual, procreative -- procreative

relationships.

 

 

67

 

 

 

 

 

Counsel -- the Solicitor General has said

that the ban that the proposition erects in California

is permanent. Well, it's -- certainly that is not the

view of the Respondents and what we read every day.

This is not an issue that is now at 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. We would submit to you that

that question is properly decided by the people

themselves.

 

Thank you, Mr. Chief Justice.

 

CHIEF JUSTICE ROBERTS: Thank you, counsel,

counsel.

 

The case is submitted.

 

(Whereupon, at 11:27 a.m., the case in the

above-entitled matter was submitted.)

IN THE SUPREME COURT OF THE UNITED STATES

- - - - - - - - - - - - - - - - -

 

DENNIS HOLLINGSWORTH, ET AL.,

Petitioners : No. 12-144

v.

KRISTIN M. PERRY, ET AL.

 

- - - - - - - - - - - - - - - - -

Washington, D.C.

Tuesday, March 26, 2013

 

The above-entitled matter came on for oral

 

argument before the Supreme Court of the United States

 

at 10:07 a.m.

 

APPEARANCES

 

CHARLES J. COOPER, ESQ., Washington, D.C. on behalf of

 

Petitioners.

 

THEODORE B. OLSON, ESQ., Washington, D.C. on behalf of

Respondents.

 

DONALD B. VERRILLI, JR., ESQ., Solicitor General,

Department of Justice, Washington, D.C. for United

States, as amicus curiae, supporting Respondents.

 

1

 

 

 

 

C O N T E N T S

ORAL ARGUMENT OF PAGE

CHARLES J. COOPER, ESQ.

On behalf of the Petitioners 3

ORAL ARGUMENT OF

THEODORE B. OLSON, ESQ.

On behalf of the Respondents 28

ORAL ARGUMENT OF

DONALD B. VERRILLI, JR., ESQ.

For United States, as amicus curiae, 49

supporting Respondents

REBUTTAL ARGUMENT OF

CHARLES J. COOPER, ESQ.

On behalf of the Petitioners 63

 

2

 

 

 

 

 

 

P R O C E E D I N G S

 

(10:07 a.m.)

CHIEF JUSTICE ROBERTS: We'll hear argument

this morning in Case 12-144, Hollingsworth v. Perry.

Mr. Cooper?

ORAL ARGUMENT OF CHARLES J. COOPER

ON BEHALF OF THE PETITIONERS

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 -

 

 

CHIEF JUSTICE ROBERTS: Mr. Cooper, we have

jurisdictional and merits issues here. Maybe it'd be

best if you could begin with the standing issue.

 

MR. COOPER: I'd be happy to,

Mr. Chief Justice.

 

Your Honor, the official proponents of

Proposition 8, the initiative, have standing to defend

that measure before this Court as representatives of the

people and the State of California to defend the

validity of a measure that they brought forward.

 

JUSTICE GINSBURG: Have we ever granted

standing to proponents of ballot initiatives?

 

 

3

 

 

 

 

 

MR. COOPER: No, Your Honor, the Court has

not done that. But the Court has never had before it a

clear expression from a unanimous State's high court

that -

 

 

JUSTICE GINSBURG: Well, this is -- this

is -- the concern is certainly, the proponents are

interested in getting it on the ballot and seeing that

all of the proper procedures are followed, but once it's

passed, they have no proprietary interest in it. It's

law for them just as it is for everyone else. So how

are they distinguishable from the California citizenry

in general?

 

MR. COOPER: They're distinguishable, Your

Honor, because the Constitution of the State of

California and its election code provide, 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 the initiative process, that those official

proponents also have the authority and the

responsibility to defend the validity of that

initiative -

 

 

JUSTICE SCALIA: I guess the attorney

general of this State doesn't have any proprietary

interest either, does he?

 

 

4

 

 

 

 

 

MR. COOPER: No, Your Honor, nor did -

 

 

JUSTICE SCALIA: But -- but he can defend

it, can't he -

 

 

MR. COOPER: -- nor did -

 

 

JUSTICE SCALIA: -- because the law says he

can defend it.

 

MR. COOPER: That's right, Your Honor. Nor

did the legislative leaders in the Karcher case have -

 

 

JUSTICE KAGAN: Could the State -

 

 

MR. COOPER: -- any particular enforcement -

 

 

JUSTICE KAGAN: -- could -- could the State

assign to any citizen the rights to defend a judgment of

this kind?

 

MR. COOPER: Justice Kagan, that would be

a -- 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 the -- it is the

official proponents that have a specific and -- and

carefully detailed -

 

 

JUSTICE KAGAN: Well, I just -- if you would

on the hypothetical: Could a State just assign to

anybody the ability to do this?

 

MR. COOPER: Your Honor, I think it very

well might. It very well might be able to decide that

any citizen could step forward and represent the

 

 

5

 

 

 

 

 

interests of the State and the people in that State -

 

 

CHIEF JUSTICE ROBERTS: Well, that would

be -- I'm sorry, are you finished?

 

MR. COOPER: Yes, Your Honor.

 

CHIEF JUSTICE ROBERTS: Okay. That -- that

may be true in terms of who they want to represent,

but -- but a State can't authorize anyone to proceed in

Federal court, because that would leave the definition

under Article III of the Federal Constitution as to who

can bring -- who has standing to bring claims up to each

State. And I don't think we've ever allowed anything

like that.

 

MR. COOPER: But, Your Honor, I guess the

point I want to make is that there is no question the

State has standing, the State itself has standing to

represent its own interests in the validity of its own

enactments. And if the State's public officials decline

to do that, it is within the State's authority surely, I

would submit, to identify, if not all -- any citizen or

at least supporter of the measure, certainly those, that

that very clear and identifiable group of citizens -

 

 

JUSTICE KENNEDY: Well, the Chief -- the

Chief Justice and Justice Kagan have given a proper

hypothetical to test your theory. But in this case the

proponents, number one, must give their official

 

 

6

 

 

 

 

 

address, they must pay money, and they must all act in

unison under California law. So these five proponents

were required at all times to act in unison, so that

distinguishes -- and to register and to pay money for

the -- so in that sense it's different from simply

saying any citizen.

 

MR. COOPER: But of course it is, and I

think the key -

 

 

JUSTICE SOTOMAYOR: But can you tell me -that's

a factual background 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 laws enforced?

 

MR. COOPER: Your Honor, the -- the question

before the Court, I would submit, is not the injury to

the inpidual proponents it's the injury to the State.

The -- the legislators in the Karcher case had no

inpidual particularized injury, and yet this Court

recognized they were proper representatives of the

State's interests, the State's injury -

 

 

JUSTICE SOTOMAYOR: At least one of the

amici have suggested that it seems counterintuitive to

think that the State is going to delegate to people who

don't have a fiduciary duty to them, that it's going to

delegate the responsibility of representing the State to

 

 

7

 

 

 

 

 

inpiduals who have their own views. They proposed the

ballot initiative because it was their inpidual views,

not necessarily that of the State. So -

 

 

MR. COOPER: Well -

 

 

JUSTICE SOTOMAYOR: -- Justice Scalia

proffered the question of the Attorney General. The

Attorney General has no personal interest.

 

MR. COOPER: True.

 

JUSTICE SOTOMAYOR: He has a fiduciary

obligation.

 

MR. COOPER: The Attorney General, whether

it's a fiduciary obligation or not, is in normal

circumstances the representative of the State to defend

the validity of the State's enactments when they are

challenged in Federal court. But when that officer

doesn't do so, the State surely has every authority and

I would submit the responsibility to identify

particularly in an initiative -- an initiative context.

 

JUSTICE SOTOMAYOR: Why isn't the fiduciary

duty requirement before the State can designate a

representative important?

 

MR. COOPER: Your Honor, I would submit to

you that I don't think there's anything in Article III

or in any of this Court's decisions that suggest that a

representative of a State must be -- have a fiduciary

 

 

8

 

 

 

 

 

duty, but I would also suggest -

 

 

JUSTICE SOTOMAYOR: Well, generally you

don't need to specify it because generally the people

who get to enforce the legislation of the government are

people who are in government positions elected by the

people.

 

MR. COOPER: And Your Honor -

 

 

JUSTICE SOTOMAYOR: Here these inpiduals

are not elected by the people or appointed by the

people.

 

MR. COOPER: And the California Supreme

Court specifically addressed and 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, excuse me, in this

case a 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 a precious right of every citizen, the

initiative process in that State, to ensure that when

public officials -- and after all, the initiative

process is designed to control those very public

officials, to take issues out of their hands.

 

 

9

 

 

 

 

 

And if public officials could effectively

veto an initiative by refusing to appeal it, then the

initiative process would be invalidated.

 

JUSTICE BREYER: That's -- historically, I

think, 40 States, many States have what was called a

public action. A public action is an action by any

citizen primarily to vindicate the interest in seeing

that the law is enforced. Now, that's the kind of

action I think that this Court has interpreted the

Constitution of the United States, case in controversy,

to say that it does not lie in the Federal system.

 

And of course, if that kind of action is the

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 interests, we found the five citizens

who most strongly want to vindicate the interest in the

law being enforced and the process for making the law be

enforced, well, that won't distinguish it from a public

action.

 

But then you say, but also they are

representing the State. At this point, the Dellinger

brief which takes the other side of it is making a

strong argument, well, they are really no more than a

group of five people who feel really strongly that we

 

 

10

 

 

 

 

 

should vindicate this public interest, and have good

reason for thinking it.

 

So you have read all these arguments that

it's not really the agent and so forth. What do you

want to say about it?

 

MR. COOPER: What I want to say, Your Honor,

is according to the California Supreme Court, the

California Constitution says in terms that among the

responsibilities of official proponents, in addition to

the many other responsibilities that they step forward

and they assume in the initiative process, among those

responsibilities and authorities is to defend that

initiative if the public officials which the initiative

process is designed to control have refused to do it.

It might as well say it in those terms, Your Honor.

 

CHIEF JUSTICE ROBERTS: Counsel, if you want

to proceed to the merits, you should feel free to do so.

 

MR. COOPER: Thank you very much, Your

Honor.

 

My -- my -- excuse me. As I was saying, the

accepted truth -- excuse me. The accepted truth that -that

the New York high court observed is one that is

changing and changing rapidly in this country as people

throughout the country engage in an earnest debate over

whether the age-old definition of marriage should be

 

 

11

 

 

 

 

 

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 50 States. And

it does so only if the Respondents are correct that no

rational, thoughtful person of goodwill could possibly

disagree with them in good faith on this agonizingly

difficult issue.

 

The issues, the constitutional issues that

have been presented to the Court, are not of first

impression here. In Baker v. Nelson, this Court

unanimously dismissed for want of a substantial Federal

question.

 

JUSTICE GINSBURG: Mr. Cooper, Baker v.

Nelson was 1971. The Supreme Court hadn't even decided

that gender-based classifications get any kind of

heightened scrutiny.

 

MR. COOPER: That is -

 

 

JUSTICE GINSBURG: And the same-sex intimate

conduct was considered criminal in many States in 1971,

so I don't think we can extract much in Baker v. Nelson.

 

MR. COOPER: Well, Your Honor, certainly I

acknowledge the precedential limitations of a summary

dismissal. But Baker v. Nelson also came fairly fast on

the heels of the Loving decision. And, Your Honor, I

 

 

12

 

 

 

 

 

simply make the observation that it seems implausible in

the extreme, frankly, for nine justices to have -- to

have seen no substantial Federal question if it is true,

as the Respondents maintain, that the traditional

definition of marriage insofar as -- insofar as it does

not include same-sex couples, insofar as it is a gender

definition is irrational and can only be explained, can

only be explained, as a result of anti-gay malice and a

bare desire to harm.

 

JUSTICE KENNEDY: Do you believe this can be

treated as a gender-based classification?

 

MR. COOPER: Your Honor, I -

 

 

JUSTICE KENNEDY: It's a difficult question

that I've been trying to wrestle with it.

 

MR. COOPER: Yes, Your Honor. And we do

not. We do not think it is properly viewed as a

gender-based classification. Virtually every appellate

court, State and Federal, with one exception, Hawaii, in

a superseded opinion, has agreed that it is not a

gender-based classification, but I guess it is

gender-based in the sense that marriage itself is a

gendered institution, a gendered term, and so in the

same way that fatherhood is gendered more motherhood is

gendered, it's gendered in that sense.

 

But we -- we agree that to the extent that

 

 

13

 

 

 

 

 

the classification impacts, as it clearly does, same-se

couples, that -- that classification can be viewed as

being one of sexual orientation rather than -

 

 

JUSTICE SOTOMAYOR: Outside of the -outside

of the marriage context, can you think of any

other rational basis, reason, for a State using sexual

orientation as a factor in denying homosexuals benefits

or imposing burdens on them? Is there any other

rational decision-making that the Government could make?

Denying them a job, not granting them benefits of some

sort, any other decision?

 

MR. COOPER: Your Honor, I cannot. I do not

have any -- anything to offer you in that regard. I

think marriage is -

 

 

JUSTICE SOTOMAYOR: All right. If that -if

that is true, then why aren't they a class? If

they're a class that makes any other discrimination

improper, irrational, then why aren't we treating them

as a class for this one thing? Are you saying that the

interest of marriage is so much more compelling than any

other interest as they could have?

 

MR. COOPER: No, Your Honor, we certainly

are not. We -- we are saying the interest in marriage

and the -- and the State 's interest and society's

interest in what we have framed as responsible pro -

 

 

 

14

 

 

 

 

 

procreation is -- is vital, but at bottom, with respect

to those interests, our submission is that same-se

couples and opposite-sex couples are simply not

similarly situated.

 

But to come back to your precise question, I

think, Justice Sotomayor, you're probing into whether or

not sexual orientation ought to be viewed as a

quasi-suspect or suspect class, and our position is that

it does not qualify under this Court's standard and -and

traditional tests for identifying suspectedness.

The -- the class itself is -- is quite amorphous. It

defies consistent definition as -- as the Plaintiffs'

own experts were -- were quite vivid on. It -- it does

not -- it -- it does not qualify as an accident of

birth, immutability in that -- in that sense.

 

Again, the Plaintiffs -

 

 

JUSTICE SOTOMAYOR: So you -- so what -- I

don't quite understand it. If you're not dealing with

this as a class question, then why would you say that

the Government is not free to discriminate against them?

 

MR. COOPER: Well, Your Honor, I would think

that -- that -- 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 qualify

 

 

15

 

 

 

 

 

under this Court's traditional test for suspectedness.

And -- and the hypothetical I understood you to be

offering, I would submit would create -- it would -unless

there's something that -- that is not occurring

to me immediately, an arbitrary and capricious

distinction among similarly situated inpiduals,

that -- that is not what we think is at the -- at the

root of the traditional definition of marriage.

 

JUSTICE KAGAN: Mr. Cooper, could I just

understand your argument. In reading the briefs, it

seems as though your principal argument is that same-se

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-se

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?

 

 

16

 

 

 

 

 

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

 

17

 

 

 

 

 

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.

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.

 

But consider the California voter, in 2008,

in the ballot booth, with the question before her

whether or not this age-old bedrock social institution

should be fundamentally redefined, and knowing that

there's no way that she or anyone else could possibly

know what the long-term implications of -- of profound

redefinition of a bedrock social institution would be.

That is reason enough, Your Honor, that would hardly be

irrational for that voter to say, I believe that this

experiment, which is now only fairly four years old,

even in Massachusetts, the oldest State that is

conducting it, to say, I think it better for California

 

 

18

 

 

 

 

 

to hit the pause button and await additional information

from the jurisdictions where this experiment is still

maturing.

 

JUSTICE SCALIA: Mr. Cooper, let me -- let

me give you one -- one concrete thing. I don't know why

you 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 to what the consequences of raising a

child in a -- in a single-sex family, whether that is

harmful to the child or not. Some States do not -- do

not permit adoption by same-sex couples for that reason.

 

JUSTICE GINSBURG: California -- no,

California does.

 

JUSTICE SCALIA: I don't think we know the

answer to that. Do you know the answer to that, whether

it -- whether it harms or helps the child?

 

MR. COOPER: No, Your Honor. And there's -there's

-

 

 

JUSTICE SCALIA: But that's a possible

deleterious effect, isn't it?

 

MR. COOPER: Your Honor, it -- it is

certainly among the -

 

 

JUSTICE GINSBURG: It wouldn't be in

 

 

19

 

 

 

 

 

California, Mr. Cooper, because that's not an issue, is

it? In California, you can have same-sex couples

adopting a child.

 

MR. COOPER: That's right, Your Honor. That

is true. And -- but -- but, Your Honor, here's -here's

the point -

 

 

JUSTICE SCALIA: I -- it's true, but

irrelevant. They're arguing for a nationwide rule which

applies to States other than California, that every

State must allow marriage by same-sex couples. And so

even though States that believe it is harmful -- and I

take no position on whether it's harmful or not, but it

is certainly true that -- that there's no scientific

answer to that question at this point in time.

 

MR. COOPER: And -- and that, Your Honor, is

the point I am trying to make, and it is the

Respondents' responsibility to prove, under rational

basis review, not only that -- that there clearly will

be no harm, but that it's beyond debate that there will

be no harm.

 

JUSTICE GINSBURG: Mr. Cooper, you are

defending -- you are opposing a judgment that applies to

California only, not to all of the States.

 

MR. COOPER: That's true, Your Honor. And

if there were a way to cabin the arguments that are

 

 

20

 

 

 

 

 

being presented to you to California, then the concerns

about redefining marriage in California could be

confined to California, but they cannot, Your Honor.

 

JUSTICE KENNEDY: I -- I think there's -there's

substantial -- 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 or legal -- what could be a legal injury,

and that's the voice of these children. There are some

40,000 children in California, according to the Red

Brief, that live with same-sex 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?

 

MR. COOPER: Your Honor, I certainly would

not dispute 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. It's being debated

elsewhere. But on that -- on that specific question,

Your Honor, there simply is no data.

 

In fact, their expert agreed there is no

data, no study, even, that would examine whether or not

 

 

21

 

 

 

 

 

there is 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 is simply no data at all that would

permit one to draw -- draw that conclusion.

 

I would recall, Justice Kennedy, the point

made in Romer, that under a rational basis of review,

the provision will be sustained even if it operates to

the disadvantage of a group, if it is -- if it otherwise

advances rationally a legitimate State interest.

 

CHIEF JUSTICE ROBERTS: Mr. Cooper, we will

afford you more time. You shouldn't worry about losing

your rebuttal time, but please continue on.

 

MR. COOPER: Oh -

 

 

JUSTICE BREYER: As long as you are on that,

then I would like to ask you this: Assume you could

distinguish California, suppose we accept your argument

or accept Justice Scalia's 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 marry would interfere with the vision of

marriage as procreation of children that allowing

sterile couples of different sexes to marry would not?

 

I mean, there are lots of people who get

 

 

22

 

 

 

 

 

married who can't have children. To take a State that

does allow adoption and say -- there, what is the

justification for saying no gay marriage? Certainly not

the one you said, is it?

 

MR. COOPER: You're -

 

 

JUSTICE BREYER: Am I not clear?

 

Look, you said that the problem is marriage

that it is an institution that furthers procreation.

 

MR. COOPER: Yes, Your Honor.

 

JUSTICE BREYER: And the reason there was

adoption, but that doesn't apply to California. So

imagine I wall off California and I'm looking just

there, where you say that doesn't apply. 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.

 

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.

 

Suppose, in turn -

 

 

 

23

 

 

 

 

 

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.)

 

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.)

 

MR. COOPER: Your Honor, society's -society's

interest in responsible procreation isn't just

 

 

24

 

 

 

 

 

with respect to the procreative capacities of the couple

itself. The marital norm, which imposes the obligations

of fidelity and monogamy, Your Honor, advances the

interests in responsible procreation by making it more

likely that neither party, including the fertile party

to that -

 

 

JUSTICE KAGAN: Actually, I'm not even -

 

 

JUSTICE SCALIA: I suppose we could have a

questionnaire at the marriage desk when people come in

to get the marriage -- you know, Are you fertile or are

you not fertile?

 

(Laughter.)

 

JUSTICE SCALIA: I suspect this Court would

hold that to be an unconstitutional invasion of privacy,

don't you think?

 

JUSTICE KAGAN: Well, I just asked about

age. I didn't ask about anything else. That's not -we

ask about people's age all the time.

 

MR. COOPER: Your Honor, and even asking

about age, you would have to ask if both parties are

infertile. Again -

 

 

JUSTICE SCALIA: Strom Thurmond was -- was

not the chairman of the Senate committee when Justice

Kagan was confirmed.

 

(Laughter.)

 

 

25

 

 

 

 

 

MR. COOPER: Very few men -- very few men

outlive their own fertility. So I just -

 

 

JUSTICE KAGAN: A couple where both people

are over the age of 55 -

 

 

MR. COOPER: I -

 

 

JUSTICE KAGAN: A couple where both people

are over the age of 55.

 

MR. COOPER: And Your Honor, again, the

marital norm which imposes upon that couple the

obligation of fidelity -

 

 

JUSTICE SOTOMAYOR: I'm sorry, where is

this -

 

 

CHIEF JUSTICE ROBERTS: I'm sorry, maybe you

can finish your answer to Justice Kagan.

 

 

JUSTICE SOTOMAYOR: I'm sorry.

 

MR. COOPER: It's designed, Your Honor, to

make it less likely that either party to that -- to that

marriage will engage in irresponsible procreative

conduct outside of that marriage. Outside of that

marriage. That's the marital -- that's the marital

norm. Society has an interest in seeing a 55-year-old

couple that is -- just as it has an interest of seeing

any heterosexual couple that intends to engage in a

prolonged period of cohabitation to reserve that until

they have made a marital commitment, a marital

 

26

 

 

 

 

 

commitment. So that, should that union produce any

offspring, it would be more likely that that child or

children will be raised by the mother and father who

brought them into the world.

 

JUSTICE GINSBURG: Mr. Cooper, we said that

somebody who is locked up in prison and who is not going

to get out has a right to marry, has a fundamental right

to marry, no possibility of procreation.

 

MR. COOPER: Your Honor is referring, I'm

sure, to the Turner case, and -

 

 

JUSTICE GINSBURG: Yes.

 

MR. COOPER: -- I think that, with due

respect, Justice Ginsburg, way over-reads -- way

over-reads Turner against Safley. That was a case in

which the prison at issue -- and it was decided in the

specific context of a particular prison where there were

both female and male inmates, many of them minimum

security inmates. It was dealing with a regulation,

Your Honor, that had previously permitted marriage in

the case of pregnancy and childbirth.

 

The Court -- the Court here emphasized that,

among the incidents of marriage that are not destroyed

by that -- at least that prison context, was the

expectation of eventual consummation of the marriage and

legitimation of -- of the children. So that -

 

 

 

27

 

 

 

 

 

CHIEF JUSTICE ROBERTS: Thank you,

Mr. Cooper.

 

MR. COOPER: Thank you, Mr. Chief Justice.

 

CHIEF JUSTICE ROBERTS: Mr. Olson?

 

ORAL ARGUMENT OF THEODORE B. OLSON

ON BEHALF OF THE RESPONDENTS

MR. OLSON: Thank you, Mr. Chief Justice,

and may it please the Court:

 

I know that you will want me to spend a

moment or two addressing the standing question, but

before I do that, I thought that it would be important

for this Court to have Proposition 8 put in context,

what it does. It walls-off gays and lesbians from

marriage, the most important relation in life, according

to this Court, thus stigmatizing a class of Californians

based upon their status and labeling their most

cherished relationships as second-rate, different,

unequal, and not okay.

 

CHIEF JUSTICE ROBERTS: Mr. Olson, I cut off

your friend before he could get into the merits.

 

MR. OLSON: I was trying to avoid that, Your

Honor.

 

CHIEF JUSTICE ROBERTS: I know -

 

 

(Laughter.)

 

CHIEF JUSTICE ROBERTS: Well, I think it's

 

 

28

 

 

 

 

 

only fair to treat you the same. Perhaps you could

address your jurisdictional argument?

 

MR. OLSON: Yes. I think that our

jurisdictional argument is, as we set forth in the

brief, California cannot create Article III standing by

designating whoever it wants to defend the State of

California in connection with the ballot.

 

JUSTICE KENNEDY: But this is not whoever it

wants. These are five proponents of -- 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 -- and then when the 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 ratchet as it favors

the State, and allows governors and other constitutional

officers in different States to thwart the initiative

process.

 

MR. OLSON: That's the -- that's the way the

California Supreme Court saw it with respect to

California law. The governor and the Attorney General

of California are elected to act in the best interests

of the State of California. They made a professional

judgment given their obligations as officers of the

 

 

29

 

 

 

 

 

State of California.

 

The California Supreme Court has said that

proponents -- and by the way, only four of the five are

here. Dr. Tam withdrew from the case because of some -many

things he said during the election campaign.

 

JUSTICE ALITO: Well, Mr. Olson, 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? Is that

your position?

 

MR. OLSON: I don't -- I don't think it's

quite that limited. I think one of your colleagues

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

represent the State of California along -

 

 

JUSTICE SCALIA: Who -- who would appoint

him? The same governor that didn't want to defend the

plebiscite?

 

MR. OLSON: Well, that happens all the time.

As you recall in the case of -- well, let's not spend

too much time on independent counsel provisions, but -

 

 

 

30

 

 

 

 

 

(Laughter.)

 

MR. OLSON: The governor -- the government

of the State of California frequently appoints an

attorney where there's a perceived conflict of

interest -

 

 

JUSTICE SCALIA: I suppose -

 

 

MR. OLSON: -- and that person would have a

responsibility for the State and might have

responsibility for the attorneys' fees.

 

CHIEF JUSTICE ROBERTS: I suppose there

might be people out there with their own personal

standing, someone who performs marriages and would like

that to remain open to everyone but would prefer not to

perform same-sex marriages, or other people. We seem to

be addressing the case as if the only options are the

proponents here or the State. I'm not sure there aren't

other people out there with inpidual personalized

injury that would satisfy Article III.

 

MR. OLSON: There might well be in -- in a

different case. 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 -- maybe it was a binary system of people

got resources and other people didn't get resources,

there could be standing. Someone would show actual

 

 

31

 

 

 

 

 

injury.

 

The point, I guess, at the bottom of this is

the Supreme Court, this Court, decided in Raines v. Byrd

that Congress couldn't specify members of Congress in

that context even where the measure depleted or

diminished powers of Congress -

 

 

JUSTICE SOTOMAYOR: Mr. Olson, I think the

bottom line -

 

 

JUSTICE ALITO: The States are not bound by

the same separation of powers doctrine that underlies

the Federal Constitution. You couldn't have a Federal

initiative, for example. They're free of all that.

 

So start from the proposition that a State

has standing to defend the constitutionality of a State

law un- -- beyond dispute. The question then is, who

represents the State?

 

Now, in a State that has initiative, 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 do, because you're 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

 

 

32

 

 

 

 

 

left is the proposition that the State -- State law can

choose some other person, some other group to defend the

constitutionality of a 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?

 

MR. OLSON: The only -- 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, it could be four of the proponents they

could have an interest other than the State because they

have no fiduciary responsibility to the State they may

be incurring attorneys' fees on behalf of the State or

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 it's a

close one, because California thinks that this is the

system. The California Supreme Court thought that this

was a system that would be a default system. I'm

suggesting from your decisions with respect to Article

III that that takes more than that under -

 

 

JUSTICE SOTOMAYOR: Mr. Olson, I think that

 

 

33

 

 

 

 

 

you're not answering the fundamental fear. And so -and

-- and the amici brief that sets forth this test of

fiduciary duty doesn't quite either.

 

The assumption is that there are not

executive officials who want to defend the law. They

don't like it. No one's going to do that. So how do

you get the law defended in that situation?

 

MR. OLSON: I don't have an answer to that

question unless there's an appointment process either

built into the system where it's an officer of

California or -

 

 

JUSTICE SOTOMAYOR: So why -- why isn't this

viewed as an appointment process, that the in -- the

ballot initiators have now become that body?

 

MR. OLSON: And that's the argument -

 

 

JUSTICE SOTOMAYOR: Is that your argument -

 

 

MR. OLSON: That's our -- that's the

argument our opponents make. But it -- but it must be

said that it happens all of the time, that Federal

officials and State officials decide not to enforce a

statute, to enforce a statute in certain ways. We don't

then come in and decide that there's someone else ought

to be in court for every particular -

 

 

JUSTICE BREYER: What the brief says is, of

course, you can appoint people. It's not just that you

 

 

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appoint them, it's that the State's interest, when it

defends a law, is the interest in executing the law of

the State. So all you have to do is give a person that

interest. But when a person has the interest of

defending this law, as opposed to defending the law of

the State of California, there can be all kinds of

conflicts, all kinds of situations.

 

That's what I got out of the brief. So give

the person that 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.

 

MR. OLSON: Yeah, I don't -

 

 

JUSTICE BREYER: Why is it missing here?

 

MR. OLSON: It is -- what is missing here,

because you're not an officer of the State of

California, you don't have a fiduciary duty to the State

of California, you're not bound by the ethical standards

of an officer of the State of California to represent

the State of California, you could have conflicts of

interest. And as I said, you'd be -- could be incurring

enormous legal fees on behalf of the State when the

State hasn't decided to go that route. I think -

 

 

CHIEF JUSTICE ROBERTS: You should feel free

to move on to the merits.

 

MR. OLSON: Thank you, Your Honor. As I

 

 

35

 

 

 

 

 

pointed out at the -- at the outset, this is a measure

that walls off the institution of marriage, which is not

society's right. It's an inpidual right that this

Court again and again and again has said the right to

get married, the 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 the

right to get married under the Constitution, you've

described it as marriage, procreation, family, other

things like that. So the procreation aspect, the

responsibility or ability or interest in procreation is

not a part of the right to get married. Now, that -

 

 

CHIEF JUSTICE ROBERTS: I'm not sure,

counsel, that it makes -- 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.

 

It is -- yes, you can say that it serves

some of the other interests where it makes sense to

include them, but not all the interests. And it seems

 

 

36

 

 

 

 

 

to me, your friend argues on the other side, if you have

an institution that pursues additional interests, you

don't have to include everybody just because some other

aspects of it can be applied to them.

 

MR. OLSON: Well, there's a couple of

answers to that, it seems to me, Mr. Chief Justice. In

this case, that decision to exclude gays and lesbians

was made by the State of California.

 

CHIEF JUSTICE ROBERTS: Oh, that's only

because Proposition 8 came 140 days after the California

Supreme Court issued its decision.

 

MR. OLSON: That's right.

 

CHIEF JUSTICE ROBERTS: And don't you think

it's more reasonable to view it as a change by the

California Supreme Court of this institution that's been

around since time immemorial?

 

MR. OLSON: The California Supreme Court,

like this Supreme Court, decides what the law is. The

California Supreme Court decided that the Equal

Protection and Due Process Clauses of that California

Constitution did not permit excluding gays and lesbians

from the right to get married -

 

 

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

 

 

37

 

 

 

 

 

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.)

 

JUSTICE SCALIA: When do you think it became

unconstitutional? Has it always been unconstitutional?

 

MR. OLSON: When the -- when the California

Supreme Court faced the decision, which it had never

faced before, is -- does excluding gay and lesbian

citizens, who are a class based upon their status as

homosexuals -- is it -- is it constitutional -

 

 

 

38

 

 

 

 

 

JUSTICE SCALIA: That -- that's not when it

became unconstitutional. That's when they acted in an

unconstitutional matter -- in an unconstitutional

matter. When did it become unconstitutional to prohibit

gays from marrying?

 

MR. OLSON: That -- they did not assign a

date to it, Justice Scalia, as you know. What the court

decided was the case that came before it -

 

 

JUSTICE SCALIA: I'm not talking about the

California Supreme Court. I'm talking about your

argument. You say it is now unconstitutional.

 

MR. OLSON: Yes.

 

JUSTICE SCALIA: Was it always

unconstitutional?

 

MR. OLSON: It was constitutional when we -as

a culture determined that sexual orientation is a

characteristic of inpiduals that they cannot control,

and that that -

 

 

JUSTICE SCALIA: I see. When did that

happen? When did that happen?

 

MR. OLSON: There's no specific date in

time. This is an evolutionary cycle.

 

JUSTICE SCALIA: Well, how am I supposed to

know how to decide a case, then -

 

 

MR. OLSON: Because the case that's before

 

 

39

 

 

 

 

 

you -

 

 

JUSTICE SCALIA: -- if you can't give me a

date when the Constitution changes?

 

MR. OLSON: -- in -- the case that's before

you today, California decided -- the citizens of

California decided, after the California Supreme Court

decided that inpiduals had a right to get married

irrespective of their sexual orientation in California,

and then the Californians decided in Proposition 8, wait

a minute, we don't want those people to be able to get

married.

 

CHIEF JUSTICE ROBERTS: So -- so your

case -- your case would be different if Proposition 8

was enacted into law prior to the California Supreme

Court decision?

 

MR. OLSON: I would make -- I would make

the -- also would make the -- that distinguishes it in

one respect. But also -- also -- I would also make the

argument, Mr. Chief Justice, that we are -- this -marriage

is a fundamental right and we are making a

classification based upon a status of inpiduals, which

this Court has repeatedly decided that gays and lesbians

are defined by their status. There is no question about

that.

 

JUSTICE SCALIA: So it would be

 

 

40

 

 

 

 

 

unconstitutional even in States that did not allow

civil unions?

 

MR. OLSON: We do, we submit that. You

could write a narrower decision.

 

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

inpiduals -- 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.

 

MR. OLSON: But what I have before you now,

the case that's before you today, is whether or not

 

 

41

 

 

 

 

 

California can take a class of inpiduals based upon

their characteristics, their 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 to say

procreation or anything of that nature, because

procreation is not a part of the right to get married.

 

JUSTICE KENNEDY: That's really -- that's a

broad argument that you -- that's in this case if the

Court wants to reach it. The rationale of the Ninth

Circuit was much more narrow. It basically said that

California, which has been more generous, more open to

protecting same-sex couples than almost any State in the

Union, just didn't go far enough, and it's being

penalized for not going far enough.

 

That's a very odd rationale on which to

sustain this opinion.

 

MR. OLSON: This Court has always looked

into the context. In, for example, the New Orleans case

involving the gambling casinos and advertising, you look

at the context of what was permitted, what was not

permitted, and does that rationalization for prohibiting

in that case the advertising, in this case prohibiting

the relationship of marriage, does it make any sense in

 

 

42

 

 

 

 

 

the context of what exists?

 

JUSTICE ALITO: Seriously, Mr. Olson,

if California provides all the substantive benefits of

marriage to same-sex domestic partnerships, are you

seriously arguing that if California -- if the State -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?

 

MR. OLSON: No, I don't think it would come

out differently, because of the fundamental arguments

we're making with respect to 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 of

rights of people to live together and that sort of

thing, those arguments can't be made on behalf of

California, because California's already made a decision

that gay and lesbian inpiduals are perfectly suitable

as parents, they're perfectly suitable to adopt, they're

raising 37,000 children 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 married.

 

JUSTICE ALITO: I don't think you can have

it both ways. Either this case is the same, this would

 

 

43

 

 

 

 

 

be the same if this were Utah or Oklahoma, or it's

different because it's California and California has

provided all these -

 

 

MR. OLSON: I -- I think that it's not that

we're arguing that those are inconsistent. If 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 the

State comes forth with certain arguments -- Utah might

come forth with certain justifications. California

might come forth with others. But the fact is that

California can't make the arguments about adoption or

child-rearing or people living together, because they

have already made policy decisions. So that doesn't

make them inconsistent.

 

CHIEF JUSTICE ROBERTS: So it's just

about -- it's just about the label in this case.

 

MR. OLSON: The label is -

 

 

CHIEF JUSTICE ROBERTS: Same-sex couples

have every other right, it's just about the label.

 

MR. OLSON: The label "marriage" means

something. Even our opponents -

 

 

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,

 

 

44

 

 

 

 

 

 

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 -

 

 

CHIEF JUSTICE ROBERTS: How do we know -how

do we know that that's the reason, or a necessary

part of the reason, that we've recognized marriage as a

fundamental right? That's -- you've emphasized that and

you've said, well, it's because of the emotional

commitment. Maybe it is the procreative aspect that

makes it a fundamental right.

 

MR. OLSON: But you have said that marriage

is a fundamental right with respect to procreation and

at the same level getting married, privacy -- you said

that in the Zablocki case, you said that in the Lawrence

 

 

45

 

 

 

 

 

case, and you said it in other cases, the Skinner case,

for example.

 

Marriage is put on a pro- -- equal footing

with procreational aspects. And your -- this Court is

the one that has said over and over again that marriage

means something to the inpidual: The privacy,

intimacy, and that it is a matter of status and

recognition in this -

 

 

JUSTICE SOTOMAYOR: Mr. Olson, the bottom

line that you're being asked -- and -- and it is one

that I'm interested in the answer: If you say that

marriage is a fundamental right, what State restrictions

could ever exist? Meaning, what State restrictions with

respect to the number of people, with respect to -- that

could get married -- the incest laws, the mother and

child, assuming that they are the age -- I can -- I can

accept that the State has probably an overbearing

interest on -- on protecting a child until they're of

age to marry, but what's left?

 

MR. OLSON: Well, you've said -- you've said

in the cases decided by this Court that the polygamy

issue, multiple marriages raises questions about

exploitation, abuse, patriarchy, issues with respect to

taxes, inheritance, child custody, it is an entirely

different thing. And if you -- if a State prohibits

 

 

46

 

 

 

 

 

polygamy, it's prohibiting conduct.

 

If it prohibits gay and lesbian citizens

from getting married, it is prohibiting their exercise

of a right based upon their status. It's selecting them

as a class, as you described in the Romer case and as

you described in the Lawrence case and in other cases,

you're picking out a group of inpiduals to deny them

the freedom that you've said is fundamental, important

and vital in this society, and it has status and

stature, as you pointed out in the VMI case. There's

a -- there's a different -

 

 

JUSTICE SOTOMAYOR: Is there any way to

decide this case in a principled manner that is limited

to California only?

 

MR. OLSON: Yes, the Ninth Circuit did that.

You can decide the standing case that limits it to the

decision of the district court here. You could decide

it as the Ninth Circuit did -

 

 

JUSTICE KENNEDY: The problem -- the problem

with the case is that you're really asking, particularly

because of the sociological evidence you cite, for us to

go into uncharted waters, and you can play with that

metaphor, there's a wonderful destination, it is a

cliff. Whatever that was.

 

(Laughter.)

 

 

47

 

 

 

 

 

JUSTICE KENNEDY: But you're -- you're doing

so in a -- in a case where the opinion is very narrow.

Basically that once the State goes halfway, it has to go

all the way or 70 percent of the way, and you're doing

so in a case where there's a substantial question on -on

standing. I just wonder if -- if the case was

properly granted.

 

MR. OLSON: Oh, the case was certainly

properly granted, Your Honor. I mean, there was a full

trial of all of these issues. There was a 12-day trial,

the judge insisted on evidence on all of these

questions. This -- this is a -

 

 

JUSTICE KENNEDY: But that's not the issue

the Ninth Circuit decided.

 

MR. OLSON: The issue -- yes, the Ninth

Circuit looked at it and decided because of your

decision on the Romer case, this Court's decision on the

Romer case, that it could 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 -- and I don't

want to abuse the Court's indulgence, that what I -- you

suggested that this is uncharted waters. It was

uncharted waters when this Court, in 1967, in the Loving

decision said that interracial -- prohibitions

 

 

48

 

 

 

 

 

on interracial marriages, which still existed in 16

States, were unconstitutional.

 

JUSTICE KENNEDY: It was hundreds of years

old in the common law countries. This was new to the

United States.

 

MR. OLSON: And -- and what we have here -

 

 

JUSTICE KENNEDY: So -- so that's not

accurate.

 

MR. OLSON: I -- I respectfully submit that

we've under -- we've learned to understand more about

sexual orientation and what it means to inpiduals.

guess the -- the language that Justice Ginsburg used at

the closing of the VMI case is an important thing, it

resonates with me, "A prime part of the history of our

Constitution is the story of the extension of

constitutional rights to people once ignored or

excluded."

 

CHIEF JUSTICE ROBERTS: Thank you, counsel.

General Verrilli?

ORAL ARGUMENT OF DONALD B. VERRILLI, JR.,

FOR UNITED STATES, AS AMICUS CURIAE,

SUPPORTING THE RESPONDENTS

GENERAL VERRILLI: Mr. Chief Justice, and may it please the Court Proposition 8 denies gay and lesbian persons the equal protection of the laws -

CHIEF JUSTICE ROBERTS: You don't think you're going to get away with not starting with the jurisdictional question, do you?

(Laughter.)

GENERAL VERRILLI: As an amicus, I thought I might actually, Your Honor. And -- and, of course, we didn't take a position on standing. We didn't -- we didn't brief it, we don't have a formal position on standing. But I will offer this observation based on the discussion today and the briefing.

We do think that while it's certainly not free of doubt, that the better argument is that there is not Article III standing here because -- I don't want to go beyond just summarizing our position, but -- because we don't have a formal position. But we do think that with respect to standing, that at this point with the initiative process over, that Petitioners really have what is more in the nature of a generalized grievance and because they're not an agent of the State of California or don't have any other official tie to the State that would -- would result in any official control of their litigation, that the better conclusion is that there's not Article III standing here.

 

JUSTICE ALITO: Well, tomorrow you're going to be making a standing argument that some parties think is rather tenuous, but today, you're -- you're very strong for Article III standing?

GENERAL VERRILLI: Well, we said this was a -- we said this was a close question, and -- and our interests are, Justice Alito, in tomorrow's issues where we have briefed the matter thoroughly and will be prepared to discuss it with the Court tomorrow. With respect to the merits, two fundamental points lead to the conclusion that there's an equal protection violation here. First, every warning flagthat warrants exacting scrutiny is present in this case.And Petitioners' defense of Proposition 8 requires the Court to ignore those warning flags and instead apply highly deferential Lee Optical rational basis review as though Proposition 8 were on a par with the law of treating opticians less favorably than optometrists, when it really is the polar opposite of such a law.

JUSTICE GINSBURG: General Verrilli, I could understand your argument if you were talking about the entire United States, but you -- your brief says it's only eight or nine States, the States that permit civil unions, and that's -- brings up a question that was asked before. So a State that has made considerable progress has to go all the way, but at least the Government's position is, if it has done -- the State has done absolutely nothing at all, then it's -- it can do -- do as it will.

GENERAL VERRILLI: That gets to my second point, Your Honor, which is that I do think the problem here with the arguments that Petitioners are advancing is that California's own laws do cut the legs out from under all of the justifications that Petitioners have offered in defense of Proposition 8, and I understand Your Honor's point and the point that Justice Kennedy raised earlier, but I do think this Court's equal protection jurisprudence requires the Court to evaluate the interests 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 and adoption, full access to assistive reproduction, and therefore, the argument about the State's interests that -- that Petitioners advance have to be tested against that reality, and -- and they just don't measure up. None of the -

JUSTICE BREYER: Well, the argument -

JUSTICE ALITO: None of the -

CHIEF JUSTICE ROBERTS: Justice Breyer.

JUSTICE BREYER: What is the one -- look, a State that does nothing for gay couples 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 quite a lot, but which are their good arguments, in your opinion? I mean, take a State that really does nothing whatsoever.

They have no benefits, no nothing, no nothing. Okay? And moreover, if -- if you're right, even in California, if they have -- if they're right or, you know, if a pact is enough, they won't get Federal benefits, those that are tied to marriage, because they're not married. So -- so a State that does nothing hurts them much more, and yet your brief seems to say it's more likely to be justified under the Constitution. I'd like to know with some specificity how that could be.

GENERAL VERRILLI: Well, because you have to measure the -- under the standard of equal protection scrutiny that we think this Court's cases require.

JUSTICE BREYER: I know the principle, but I'm saying which are their good arguments, in your opinion, that would be good enough to overcome for the State that does nothing, but not good enough to overcome California where they do a lot?

GENERAL VERRILLI: Well, we -- what we're -what we're saying about that is that we're not prepared

to close the door to an argument in another State where the State's interests haven't cut the legs out from under the arguments. 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 applied and they didn't need to show anything, and so they didn't try to show anything.

Our view is that heightened scrutiny should apply, and so I don't want to -- I don't want to kid about this, we understand, that would be a very heavy burden for a State to meet. All we're suggesting is that in a situation in which the -- the State interests aren't cut out from under it, as they -- as they are here, that that issue ought to remain open for a future case. And I -- and I think the caution rationale would be the one place where we might leave it open. Because you can't leave it open in this case.

JUSTICE SOTOMAYOR: General, there is an

irony in that, which is the States that do more have less rights.

GENERAL VERRILLI: Well -- well, I understand that, Your Honor, but I do think that you have to think about the claim of right on the other side of the equation here. And in this situation, California -- the argument here that -- that gay and lesbian couples can be denied access to marriage on the ground of an interest in responsible procreation and child rearing just can't stand up given that the parents have full equality, the gay and lesbian parents have full equality apart from -

JUSTICE ALITO: You want us to assess the effects of same-sex marriage, the potential effects on -- of same-sex marriage, the potential -- the effects of Proposition 8. But what is your response to the argument which has already been mentioned about the need to be cautious in light of the newness of the -- the concept of -- of same-sex marriage.

The one thing that the parties in this case seem to agree on is that marriage is very important. It's thought to be a fundamental building block of society and its preservation essential for the preservation of society. Traditional marriage has been around for thousands of years. Same-sex marriage is very new. 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 a good thing, as the supporters of Proposition 8 apparently believe.

But 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? I mean we -- we are not -- 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 initiatives and referendums or through their elected public officials?

GENERAL VERRILLI: I have four points I would like to make to that in response to that,

Justice Alito, and I think they are all important.First, California did not through Proposition 8 do what my friend Mr. Cooper said and push a pause button. They pushed a delete button. This is a permanent ban. It's in the Constitution. It's supposed to take this issue out from the legislative process. So that's the first point.

Second -

JUSTICE ALITO: Well, just in response to that, of course the Constitution could be amended,  and -- and I think I read that the California Constitution has been amended 500 times.

GENERAL VERRILLI: But the -

JUSTICE ALITO: So it's not exactly like the U.S. Constitution. GENERAL VERRILLI: But it does -- of course not. But it is -- but the aim of this is to take it out of the normal legislative process.

The second point is that, with respect to concerns that Your Honor has 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 Petitioners are articulating with respect to Proposition 8, has to be measured in that light.

JUSTICE SCALIA: Yeah, but the rest of the country has been cautious.

GENERAL VERRILLI: And -- and that's why -

JUSTICE SCALIA: And we're -- and you are asking us to impose this on the whole country, not just California.

GENERAL VERRILLI: No, respectfully Justice Scalia, we are not. Our position is narrower than that. Our position -- the position we have taken, is about States, it applies to States that have, like California and perhaps other States, that have granted these rights short of marriage, but -

CHIEF JUSTICE ROBERTS: I don't want to -- I want you to get back to Justice Alito's other points, but is it the position of the United States that same-sex marriage is not required throughout the country?

GENERAL VERRILLI: We are not -- we are not taking the position that it is required throughout the country. We think that that ought to be left open for a future adjudication in other States that don't have the situation California has.

JUSTICE SCALIA: So your -- your position is only if a State allows civil unions does it become unconstitutional to forbid same-sex marriage, right?

GENERAL VERRILLI: I -- I see my red light is on.

CHIEF JUSTICE ROBERTS: Well, you can go on.

GENERAL VERRILLI: Thank you. Our position is -- I would just take out a red pen and take the word "only" out of that sentence. When that is true, then the Equal Protection Clause forbids the exclusion of same-sex marriage, and it's an open question otherwise.

And if I could just get to the third reason, which I do think is quite significant.

The argument here about caution is an argument that, well, we need to wait. We understand that. We take it seriously. But waiting is not a neutral act. Waiting imposes real costs in the here and now. It denies to the -- to the parents who want to marry the ability to marry, and it denies to the children, ironically, the very thing that Petitioners focus on is at the heart of the marriage relationship.

CHIEF JUSTICE ROBERTS: But you are willing to wait in the rest of the country. You saying it's got to happen right now in California, but you don't even have a position about whether it's required in the rest of the country.

GENERAL VERRILLI: If -- with respect to a State that allows gay couples to have children and to have families and then denies the stabilizing effect -

CHIEF JUSTICE ROBERTS: So it's got to happen right away in those States where same-sex couples have every legal right that married couples do.

GENERAL VERRILLI: Well, we think -

CHIEF JUSTICE ROBERTS: But you can wait in States where they have fewer legal rights.

GENERAL VERRILLI: What i said is it's an open question with respect to those States and the Court should wait and see what kind of a record a State could make. But in California you can't make the record to justify the exclusion.

And the fourth point I would make on this, recognizing that these situations are not -

JUSTICE SOTOMAYOR: How would the record be different elsewhere?

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 -

GENERAL VERRILLI: Sure.

CHIEF JUSTICE ROBERTS: -- I -- 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?

GENERAL VERRILLI: Well, I -- I think what Proposition 8 does is deny the long-term stabilizing effect that marriage brings. That's -- that's the argument for -- for marriage, that -

CHIEF JUSTICE ROBERTS: But you also tell me there has been no harm shown to children of same-sex couples.

GENERAL VERRILLI: California -- there are 37,000 children in same-sex families in California now. Their parents cannot marry and that has effects on themin the here and now. A stabilizing effect is not there. When they go to school, they have to, you know -- they don't have parents like everybody else's parents. That's a real effect, a real cost in the here and now.

JUSTICE BREYER: Well, the real cost right now would be you're asking me to write these words: "A State that has a pact has to say 'marriage,'" but I'm not telling you about States that don't. Well, I would guess there is a real-world effect there, too. That States that are considering pacts will all say "we won't do it," or not all, but some would. And that would have a real effect right now. And at the moment, I'm thinking it's much more harmful to the gay couple, the latter than the former. But you won't give me advice as the Government as to how to deal with that.

GENERAL VERRILLI: Well, we -- we think that, as I started my argument, Your Honor, that all the warning flags for exacting equal protection scrutiny are present here. This is a group that has suffered a history of terrible discrimination. The Petitioners don't deny it.

Petitioners said at the podium today that there is no justification for that discrimination in any realm other than the one posed in this case, and the -and so when those two factors are present, those are paradigm considerations for the application of heightened scrutiny, and so I don't want to suggest that the States that haven't taken those steps -

JUSTICE SOTOMAYOR: But they are not the only ones.

GENERAL VERRILLI: -- that States thathaven't taken this step, that they are going to have an easy time meeting heightened scrutiny, which I think has to apply -

JUSTICE GINSBURG: Suppose one of thoseStates repeals its civil union laws?

GENERAL VERRILLI: It would be a different case. And all I'm saying is that the door ought to remain open to that case, not that it would be easy for the State to prevail in that case.

CHIEF JUSTICE ROBERTS: Thank you, General.Mr. Cooper, to keep things fair, I think you have 10 minutes.

REBUTTAL ARGUMENT OF CHARLES J. COOPER

ON BEHALF OF THE PETITIONERS

MR. COOPER: Thank you very much.

JUSTICE KENNEDY: And you might address why you think we should take and decide this case.

MR. COOPER: Yes, Your Honor, and that is the one thing on which I wholeheartedly agree with my friend Mr. Olson. This case was properly -- is now properly before the Court and was properly granted, even if, even if, Your Honor, one could defend the -- the specific judgment below for the Ninth Circuit, a defense that I haven't heard offered to this Court. Judicial redefinition of marriage even in -- even if it can be limited to California, is well worthy of this Court's attention, particularly, Your Honor, as it come from a single district court judge in a single jurisdiction.I would also like -

JUSTICE SOTOMAYOR: I think that begs your -- Mr. Olson doesn't really focus on this. If the issue is letting the States experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?

MR. COOPER: Because, Your Honor -

JUSTICE SOTOMAYOR: We let issues perk, and so we let racial segregation perk for 50 years from 1898 to 1954.

MR. COOPER: Your Honor, it is hard to -

JUSTICE SOTOMAYOR: And now we are only talking about, at most, four years.

MR. COOPER: It is hard to imagine a case that would be better, or more thoroughly, I should say, at least, briefed and argued to this Court.

JUSTICE SCALIA: It's too late for that, too

late for that now, isn't it? I mean, we granted cert. I mean, that's essentially asking, you know, why did we grant cert. We should let it percolate for another -you know, we -- we have crossed that river, I think.

MR. COOPER: And in this particular case, to not grant certiorari is to essentially bless a judicial decision that there -- that at least in the State of California, 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, even the Solicitor General's argument, he says, applies to at least eight States.

It's impossible to limit these propositions to any particular jurisdiction, so this Court would be making a very real decision with respect to same-sex marriage if it should simply decide to dismiss the writ as improvidently granted, Justice Kennedy.

And let's just step back 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 that is, to go as far as the people possibly can in honoring and recognizing the families and the relationships of same-sex couples, while still preserving the existence of traditional marriage as an institution. That's the one thing that's off the table.

JUSTICE GINSBURG: I thought he was saying,

Mr. Cooper, that it's not before the Court today. And remember Loving against Virginia was preceded by the McLaughlin case. So first there was the question of no marriage, and then there was marriage.

So, in that sense I understood the Solicitor General to be telling us that case is not before the Court today.

MR. COOPER: Forgive me, Justice Ginsburg. The case of -- what case isn't before the Court?

JUSTICE GINSBURG: I think it was McLaughlin against Florida.

MR. COOPER: Yes.

JUSTICE GINSBURG: It was cohabitation of people of different races.

MR. COOPER: Certainly.

JUSTICE GINSBURG: And the Court took that case and waited to reach the merits case.

MR. COOPER: It's -- yes, Your Honor. And well, forgive me, Your Honor. I'm not sure I'm following the Court's question.

JUSTICE GINSBURG: I may -- my memory may be wrong, but I think the case was that people of different races were arrested and charged with the crime of interracial cohabitation. And the Court said that that was invalid.

MR. COOPER: Yes.

JUSTICE GINSBURG: Unlawful.

MR. COOPER: Yes. Thank you, Your Honor. Forgive me. And, you know, I'm glad that counsel for the Respondents mentioned the Loving case, because what this Court -- what this Court ultimately said was patently obvious, is that the colors of the skin of the 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.

That's what this question really boils down here, whether or not it can be said that for every legitimate purpose of marriage, are opposite-sex couples and same-sex couples indistinguishable, indistinguishable. And with all due respect to counsel and to the Respondents, 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 procreative capacity of opposite-sex couples continues to pose vitally important benefits and risks to society, and that's why marriage itself is the institution that society has always used to regulate those heterosexual, procreative -- procreative relationships.

Counsel -- the Solicitor General has said that the ban that the proposition erects in California is permanent. Well, it's -- certainly that is not the view of the Respondents and what we read every day. This is not an issue that is now at 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. We would submit to you that that question is properly decided by the people themselves. 

Thank you, Mr. Chief Justice.

CHIEF JUSTICE ROBERTS: Thank you, counsel, counsel. The case is submitted.

(Whereupon, at 11:27 a.m., the case in the

above-entitled matter was submitted.)

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Comments [2]

Granpa Dan from 10033

Historically I believe marriage was first about inheritance, period.

Where there was no property as in the South Pacific, and other places where renewable foliage and the waters were enough for survival and procreation, children were born from casual sex, and anyone available took responsibility for raising them until they were ready to take care of themselves.

In the middle east among the tribes, however, where there were tents and clothes made from skins and with labor from plants, and beasts for food and milk, there was marriage -- so that a tribe could more easily decide who got ownership of whatever was left when the "old man" died. We inherited this tradition, and it serves us well if we just stay with that. It's when we add other stories, that's when it gets complicated and seems worth arguing about ... .

Mar. 28 2013 11:53 AM
Emily from Nyc

Tigris transcript repeats certain sections. Needs review.

Mar. 26 2013 03:42 PM

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