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It’s as if millions of debate coaches suddenly cried out in terror, and were suddenly silenced

[ 172 ] March 26, 2013 |

I’m just a teacher of argument, not a lawyer, so I’m only going to address the merits of these arguments on their merits, not their legal standing. To begin:

JUSTICE KAGAN: Mr. Cooper, could I just understand your argument. In reading the briefs, it seems as though your principal argument is that same-sex and opposite—opposite-sex couples are not similarly situated because opposite-sex couples can procreate, same-sex couples cannot, and the State’s principal interest in marriage is in regulating procreation. Is that basically correct?

MR. COOPER: I—Your Honor, that’s the essential thrust of our—our position, yes.

JUSTICE KAGAN: Is—is there—so you have sort of a reason for not including same-sex couples. Is there any reason that you have for excluding them? In other words, you’re saying, well, if we allow same-sex couples to marry, it doesn’t serve the State’s interest. But do you go further and say that it harms any State interest?

MR. COOPER: Your Honor, we—we go further in—in the sense that it is reasonable to be very concerned that redefining marriage to—as a genderless institution could well lead over time to harms to that institution and to the interests that society has always—has—has always used that institution to address. But, Your Honor, I—

JUSTICE KAGAN: Well, could you explain that a little bit to me, just because I did not pick this up in your briefs. What harm you see happening and when and how and—what—what harm to the institution of marriage or to opposite-sex couples, how does this cause and effect work?

MR. COOPER: Once again, I—I would reiterate that we don’t believe that’s the correct legal question before the Court, and that the correct question is whether or not redefining marriage to include same-sex couples would advance the interests of marriage as a—

JUSTICE KENNEDY: Well, then are—are you conceding the point that there is no harm or denigration to traditional opposite-sex marriage couples? So you’re conceding that.

MR. COOPER: No, Your Honor, no. I’m not conceding that.

JUSTICE KENNEDY: Well, but, then it—then it seems to me that you should have to address Justice Kagan’s question.

MR. COOPER: Thank you, Justice Kennedy. I have two points to make on them. The first one is this: The Plaintiffs’ expert acknowledged that redefining marriage will have real-world consequences, and that it is impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be. And among those real-world consequences, Your Honor, we would suggest are adverse consequences.

Cooper argues, not in essence, but is actually forwarding the argument that redefining marriage will have real-world consequences that are impossible for anyone to predict, but which include the adverse ones he knows will happen. Cooper fails freshmen composition. But what are his real concerns?

MR. COOPER: Yes, Your Honor. The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus, refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples.

People might seek to meet the “emotional needs and desires of adults, of adult couples”? Why would the gays want the emotional needs and desires of all adult couples to be met? What did they ever do to them? Who really matters here anyway?

JUSTICE KAGAN: Well, suppose a State said, Mr. Cooper, suppose a State said that, Because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that be constitutional?

MR. COOPER: No, Your Honor, it would not be constitutional.

JUSTICE KAGAN: Because that’s the same State interest, I would think, you know. If you are over the age of 55, you don’t help us serve the Government’s interest in regulating procreation through marriage. So why is that different?

MR. COOPER: Your Honor, even with respect to couples over the age of 55, it is very rare that both couples—both parties to the couple are infertile, and the traditional—

(Laughter.)

The men. Of course. The men matter here, because they’re the ones who can continue to be fertile in perpetuity. So the emotional needs and desires of couples are less important to Cooper than the government’s commitment to protect the inalienable rights of viable sperm. But I’m sure there’s no precedent about marriage and its effect on children that might be relevant here.

GENERAL VERRILLI: Well, they might try to make a different record about the effects on children. But there isn’t a record to that effect here. And the fourth point I would make, and I do think this is significant, is that the principal argument in 1967 with respect to Loving and that the commonwealth of Virginia advanced was: Well, the social science is still uncertain about how biracial children will fare in this world, and so you ought to apply rational basis scrutiny and wait. And I think the Court recognized that there is a cost to waiting and that that has got to be part of the equal protection calculus. And so—so I do think that’s quite fundamental.

CHIEF JUSTICE ROBERTS: Can I ask you a problem about—it seems to me that your position that you are supporting is somewhat internally inconsistent. We see the argument made that there is no problem with extending marriage to same-sex couples because children raised by same-sex couples are doing just fine and there is no evidence that they are being harmed. And the other argument is Proposition 8 harms children by not allowing same-sex couples to marriage. Which is it?

I wonder why Roberts didn’t want to address the argument that biracial children can fare well in the world? I can’t think of any reason why he’d want to avoid that issue. I’m sure he didn’t change the subject to avoid talking about the fact that the sitting President might be relevant to the argument?

I don’t read a lot of Supreme Court transcripts, but I do teach argument and did do forensics in high school, so I know both what the former entails and what the latter occasionally requires, i.e. having to take the AFF or NEG of a case based on a draw instead of a deeply held belief. You have to argue the case you have to argue, I get that, but honestly? Cooper couldn’t have made a more unsympathetic case about an issue which, though it will be decided on other grounds, needed an argument based on something more sophisticated than bigotry in order to acquire more popular support. It’s not just a freshmen composition course he failed today.

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  1. Domino says:

    Kagan brought up couples over the age of 55, but you can extend that to couples of all ages who can’t have children. And if I’m reading Cooper’s response accurately, he doesn’t think that couple’s marriage should be annulled because the man is fertile, thus it doesn’t matter if the wife can’t bear children?

    • Chester Allman says:

      That was my reading, too. Which: huh? So it doesn’t matter if the marriage can produce children, as long as one of the partners could – in theory, with someone else. So how does this exclude same-sex couples?

      • mark f says:

        Cooper also said that there’s a state interest in a fertile person marrying an infertile person, because now the fertile one won’t be going around making bastards.

        • Chester Allman says:

          Excuse me, I just need to bang my head into a wall for a little while.

        • Shakezula says:

          Well, it is true that if I got pregnant I’d have a lot of splainin to do.

          On that topic, wouldn’t this mean the state has an interest in stopping tubal ligations and vasectomies and/or stopping people who have had same from marrying?

          • efgoldman says:

            …wouldn’t this mean the state has an interest in stopping tubal ligations and vasectomies…./blockquote> A certain segment of the religious community has made that argument for years, and a subset of the anti-choice set believes it as well.

          • efgoldman says:

            …wouldn’t this mean the state has an interest in stopping tubal ligations and vasectomies….

            A certain segment of the religious community has made that argument for years, and a subset of the anti-choice set believes it as well.

          • NBarnes says:

            Yeah, that’s the thought I had. The line of questioning about older couples marrying is good, but there’s a clearer one about the state’s interest in couples who’ve both had anti-fertility surgeries and their marriages. A heterosexual couple with a vasectomy and a tubal ligation, respectively, would seem to represent the same sort of threat to the institution of marriage that would legitimize intervention by the state.

            • Djur says:

              The argument I’ve heard in response to that is basically like this: they still got the right junks, and nobody observing can automatically tell their junks don’t work right to form babby, but if you let people with the same junks get married straight people will see that and say “whoa, marriage is so gay, count me out” and end up in poly triads with body pillows and livestock and forming babby with people’s ears and lumps of suet and such.

              At least, that’s the way it sounds to me.

              • J. Michael Neal says:

                So, same-sex marriage is fine so long as one of the partners is a cross-dresser?

                • John says:

                  Same-sex marriage is fine as long as one of the partners is a good cross-dresser. Anyway, wasn’t this already proved when Fox News decided to use a photo to represent traditional marriage that was a lesbian couple?

              • Chester Allman says:

                This is actually as cogently argued as pretty much anything I’ve heard from the anti SSM crowd.

              • Jon Hendry says:

                “end up in poly triads with body pillows and livestock and forming babby with people’s ears and lumps of suet and such.”

                Brilliant.

              • CJColucci says:

                That’s actually not a bad paraphrase of the best legal argument. In stuffier language, it would go like this: the historic purpose of marriage is to regulate procreation, but it’s just too much bother to examine everyone who might be able to procreate, so we don’t bother checking into actual fertility or procreational intentions intentions and excluding them from marriage, and we let them join the party. Same-sex couples, however, obviously can’t procreate — at least not without outside help — so there’s no reason to invite them to the party.
                There’s no good reason to exclude them from the party, either, but that’s a different point.

        • Bonzi says:

          Even if you grant that horrendous logic, does that mean bisexual fertile people can get married? Because after all, if you don’t let them, they could make bastards. It all makes my head hurt.

    • Kurzleg says:

      You can extend it to my wife and I! We’re both still fertile (though rapidly approaching the end of that run) but have no children and don’t intend to have any. And though we never intended to have children, the fact that we *could* have them is the crucial criteria for marriage license eligibility? Uh, ok.

    • commie atheist says:

      Scalia then comes up with the example of Strom Thurmond, who was inseminating his (much younger) wife into his 70s. Of course, Strom also fathered a bi-racial child out of wedlock, so he oddly works in the Loving argument as well. It’s a mixed-up, muddled-up, shook-up world, except for Nino.

    • Hagar, Handmaiden of Sarai says:

      I really don’t like where this argument ends up. Just thought I’d mention that.

    • Glenn says:

      The theory, bizarre as it is, is that marriage reins in the partners (presumably, the man) and lessens the chance that they (he) will engage in “irresponsible procreation.” Setting aside the, shall we say, underwhelming evidence for such a cause-and-effect relationship, what’s striking is just what an impoverished view of marriage they have been reduced to in order to defend their bigotry. I mean, is that what most married couples think the purpose of their marriage was? To help keep the man’s dick in his pants?

      • Glenn says:

        Not to mention, of course, that the number of Prop 8 voters who actually had this in mind is probably countable on one hand. (What the other hand is doing, I leave for Chuck Cooper & Nino Scalia to worry about.)

      • rea says:

        One of the most bizarre aspects of this is that gays are perfectly capable of procreating–hell, all those grandkids I’m raising came from somewhere. So, if marriage laws rein in that 55-year old straight who otherwise would be engaged in irresponsible procreation–how does that argument not also apply to the gay couple who get married and therefore aren’t out there procreating irresponsibly?

      • NonyNony says:

        what’s striking is just what an impoverished view of marriage they have been reduced to in order to defend their bigotry.

        Yes. The “defenders” of “traditional” marriage have reduced it down to a mechanism for the State to prevent children being conceived out of wedlock, and yet somehow allowing gay folks to get married would devalue the institution.

      • Origami Isopod says:

        Yeah. The theocons are big on woman as “civilizer” of man, who is nothing but a brute animal without her. Pretty misandrist, if you ask me.

    • James Suhr says:

      Kagan brought up couples over the age of 55, but you can extend that to couples of all ages who can’t have children.

      Good Point. Also, no one brought up in the court that there are couples that just don’t want to have children.

    • mxyzptlk says:

      It’s too dangerous for my wife to have children, so I had a vasectomy — which, I guess, makes us an abomination. Damn us! Next thing you know, we’ll be marrying our beagles.

    • mpowell says:

      He could easily have just argued that the historical pattern clearly establishes that this doesn’t harm the institution of marriages between procreating couples. But we don’t know what will happen if the gays are allowed to marry! It’s a ridiculous argument but I think it’s better than what he came up with.

    • Law Spider says:

      Where Cooper went wrong — painfully, obviously, 1st-year-law-student wrong) — is by not responding to the 55-year-old question with the dialogue-ending answer: “Why, yes, state legislatures would be free to limit marriage to people under 55 (although states are not required to do so).” If you are arguing for a limited constitutional right to marriage, that doesn’t mean that you have to argue for why that certain limits must exist in all situations. As Justice Scalia often notes about abortion, not including it as a fundamental right would not mean that states would have to outlaw it. (Note: I do not support this position, I’m just reiterating it.)

      All Moot Court points lost, Mr. Cooper.

    • Colin Day says:

      Don’t you mean if the man is infertile?

  2. rm says:

    There are no legal arguments against marriage equality — that’s his problem. And you can’t pound the table in the Supreme Court.

    Which doesn’t mean the court won’t pretend such arguments exist, but it’s hard to imagine what they will claim as their reasoning, unless they decide Leviticus is part of the Constitution.

  3. mds says:

    (Laughter.)

    Oh, if only it had been “(Derisive laughter.),” coming from at least five justices.

    I meen, Sweet Skinny-dipping Bathsheba, Cooper basically declared that the state has a compelling interest in providing fertile younger wives to older men, regardless of their current marital state. Yet it’s same-sex marriage that puts us on a slippery slope to polygamy?

  4. Sly says:

    Sotomayor, as well, impressively demolished the argument by petitioner’s counsel (Cooper) that the law does not discriminate against homosexuals as a class, which sets up Kagan to pummel him on the self-evidently ridiculous argument that marriage fulfills a state interest of regulating procreation:

    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 — 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, 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 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 individuals, that — that is not what we think is at the — at the root of the traditional definition of marriage.

    It’s all a fraud, really. Gays can’t get married because that would pollute society – we just can’t say that, because that would only give ammunition to the respondent to argue that we are discriminating just for the sake of discrimination. So we’ll concoct a specious argument that marriage is all about natural procreation.

    When that argument doesn’t hold up under scrutiny, we’ll simply say that same-sex marriage might have some potential adverse sociological effects – we really can’t be sure – and that we should err on the side of caution and restrict the liberty of millions in order to guard against the onset of hypothetical consequences.

    It’s an argument that only an Originalist could admire.

    • Sly says:

      And I particularly enjoy the fact that Sotomayor got Cooper to admit, in public, that the petitioners believe that homosexuality isn’t an immutable characteristic; a level of homophobia that even Scalia has refrained from embracing in either oral arguments or his written opinions, and he’s embraced a whole hell of a lot.

    • Djur says:

      It’s not too often that you can actually smell the flop sweat in a written transcript.

  5. c u n d gulag says:

    Wow!
    I never thought incoherency was an acceptable thing when you’re arguing before the SCOTUS!
    Whodathunkit?

    Kagan should just have laughed at him.

    Is this Cooper guy another graduate of Liberty U’s “Lawz ‘N Rules ‘N Stuf Y’all Kneed to No 2 Get A Good Job In the Bush Justice Department” program?

    Maybe he took CJ Roberts class on “Swearing Politicians Into Office” class there, too.

    • Shakezula says:

      Looking at this person as JUST an attorney (I don’t know if he is a full-time dickhead or not) this case sucks because there are no good answers to these questions. Because this case isn’t about the children or tradition. This is about bigotry and discrimination, pure and simple. I guess it is a sign of progress that he can’t just stand up there and say “Letting the freaks and pervos get married makes us sick and we don’t like it.”

      Plus, it is hilarious to see these arguments publicly flayed and it must be burning up God knows what amounts of TalEvangical money.

      • Njorl says:

        I suppose he does need to say something. I recommend that tomorrow he wear an onion on his belt.

      • Snarki, child of Loki says:

        ,,, he can’t just stand up there and say “Letting the freaks and pervos get married makes us sick and we don’t like it.”

        Sure he could! At least he’d get loud cheers and fist-bumps from Scalia and Thomas, and some faux-serious chin-pulling from Alito and Roberts, before his case finally goes down in flames.

        Which is better than JUST having it go down in flames.

    • Brandon says:

      He’s not some nobody that’s just been dumped in front of the SC, though

      http://en.wikipedia.org/wiki/Charles_J._Cooper

    • DrDick says:

      Given that there are no coherent arguments against same sex marriage (other than “gays and lesbians are yucky!”), they really have no choice.

  6. FourTen says:

    Has anyone analyzed how the arguments for and against this compare and contrast to those used in VRA/Section 5 case?

    It can’t be all just “State’s Rights” (with its attendant meanings) right? That just seems too simple.

    • Sly says:

      It is “State’s Rights,” lock, stock, and barrel.

      The entirety of the petitioner’s case rests on the notion that the state has a legitimate reason to discriminate against homosexuals, and that reason is the state’s ability to regulate procreation through marriage law.

      The respondent’s argument is that the petitioner’s argument is transparently bogus; Federally, marriage has been repeatedly affirmed as an individual right, not a state right, with more at stake than procreation. And within California the law allows same-sex couples to adopt, so the state has already conceded that same-sex couples do not pose a threat to procreation.

  7. Joe says:

    Still, he has competition in the state advocate in Lawrence v. Texas. The guy here is just overmatched. Even one of his two “experts” changed his mind since the trial.

  8. Bruce Baugh says:

    I remain fascinated by people who come to oral argument so unprepared. It’s not like the way oral argument goes is any kind of a secret, and it’s not like it’s something you can hope to skip or get a second try at. So why…?

  9. Shakezula says:

    Well it is always great to see Cooper stepping in his own asshole, as he has been since this case went up in Cali. But I too want to pick on this nugget:

    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

    Two things:

    1. Prove. It.
    2. Unless he’s talking about really redefining marriage, if only one person is infertile, there will be no babies.

    • Incontinentia Buttocks says:

      And, as pointed out upthread, it totally vitiates his “argument” about procreation. If the measure of procreative purpose is that at least one member of the couple is fertile, then most gay couples getting married qualify.

      • Breadbaker says:

        Indeed, were that the test, then the state could readily make a rule of exactly that. Only it could not rationally exclude gay couples. They’d have a helluva time with the octogenarians who marry so as to have a warm body to sleep with, though; those folks know how to protest.

        • Shakezula says:

          Ahem. It isn’t just sleep old folks are after. An issue nursing homes are grappling with – elder sex. In addition to potential liability for injuries and even death, there are cases of one [or possibly both] parties being legally unable to give consent due to dementia. As you can imagine, some nursing homes are talking the TalEvangical approach because ew sex bad.

          Sorry, I just had throw that out there because I keep thinking at some point in your life your sex drive goes into park. Apparently that point is after cessation of vital signs.

          Also, don’t go into a TalEvangical nursing home.

    • Lee Rudolph says:

      Except (perhaps) in Louisiana, which I believe respects the Code Napoleon’s axiom that “The husband of the mother is the father of the child.”

      The state has an interest in promoting cuckolding!!!

      • John says:

        Isn’t that basically the legal assumption everywhere?

      • Jon Hendry says:

        Isn’t that the case in California?

        There was some talk about how, since Kim Kardashian’s divorce isn’t final yet, her baby with Kanye West could end up being in some sense not Kanye’s child, but Kim’s husband’s.

        Sorry for bringing up these loathsome people in a thread that already involves Cooper.

  10. Dilan Esper says:

    I don’t read a lot of Supreme Court transcripts, but I do teach argument and did do forensics in high school, so I know both what the former entails and what the latter occasionally requires, i.e. having to take the AFF or NEG of a case based on a draw instead of a deeply held belief.

    This is orthogonal to the discussion, but this comment reminded me of something that happened in a hotel room in Mesa, Arizona more than 20 years ago.

    I was a college debater, and we were debating whether the Supreme Court had granted excessive power to law enforcement agencies. The other team, arguing the affirmative, used as their case Bowers v. Hardwick, upholding sodomy laws. So they were arguing the pro-gay rights side.

    At any rate, in college debate, you often have to speak very fast to get all your arguments in, and abbreviate a lot of arguments. So we got to 1st Affirmative Rebuttal, the most densely packed of the speeches, and this guy, arguing for gay rights, quickly read right off his flowchart the abbreviated version of his argument. “Gay rights good for homos”, “Homos have same rights as anyone else”, “Homos not harmful to society”, etc.

    As I said, orthogonal to the debate, but I still crack up thinking about that guy.

  11. somethingblue says:

    Your Honor, that’s the essential thrust of our—our position, yes.

    These people really do think about it all the time, don’t they?

  12. Medrawt says:

    Have we previously discussed the grammatically perverse practice of referring to the Solicitor General as “General X”?

    • Aaron B. says:

      Shouldn’t it be “Solicitor X”?

      • Medrawt says:

        Well, I don’t like addressing people by their job description (as opposed to their title or rank) except when it’s iron-clad tradition. So I wouldn’t call him “Solicitor Verrilli,” any more than I’d call my building’s doorman “Doorman Smith”. I’d say “Mr. Solicitor General,” or “Solicitor General Verrilli,” or [heaven forfend!] “Mr. Verrilli”. But it’s the practice for court records to officially say “General X”. I believe the practice with Attorneys General is less consistent, but I think they are sometimes officially referred to in the same fashion. I dunno about Postmasters and Surgeons.

        • John says:

          When did this start happening? It certainly wasn’t how it was done in England, from which the titles Attorney-General and Solicitor-General derive.

          • jefft452 says:

            I first noticed it with Ed Meese

            • Dave S. says:

              I first noticed it with Ashcroft after 9/11 but I am more than willing to believe Meese arrogated that to himself, the slimeball.

              • CJColucci says:

                The Solicitor General, like the Attorney General, is not properly a “general.” The term “general” is in these cases an adjective, not a noun. It denotes that the office-holder is the general solicitor or attorney for the government in question. Many government agencies have their very own solicitors — I believe Justice Scalia’s son was at one time Solicitor for either the Department of Labor or the NLRB. That person is the government’s solicitor for the particular agency and does a solicitor’s work for that agency and only that agency, subject to the government’s general solicitor taking over in high-policy matters odf wider governmental interest.
                The real puzzle is why solicitor general when the work is generally court argument, the province of barristers, rather than office work, the province of solicitors. Why not Barrister General?

      • Davis X. Machina says:

        General X is the totally a-historical and bogus title for the Surgeon General, I thought, and not the the totally a-historical and bogus title for the Solicitor General. The Surgeon General at least has a connection to a uniformed service.

  13. Mark says:

    My formal logic may be a little rusty, but is the “inconsistency” mentioned by Roberts actually not inconsistent at all? because I don’t see where the two statements preclude each other.

    • Aaron B. says:

      You claim that there is no difference between children raised by same-sex and opposite-sex parents. But you ALSO claim that forcing children to stay in foster homes rather than be adopted by same-sex parents would improve those childrens’ lives!

      YOU CAN’T EXPLAIN THAT

    • Medrawt says:

      Roberts’ perceived inconsistency is that the same two words (“harm” and “children”) are being used in two different prongs of the argument – “Not only is there no evidence that Activity X harms children, I would argue that prohibition of Activity X harms children.”

      And in fact, assuming I know more or less what’s under discussion without actually reading the whole transcript, Roberts is (playing?) dumber than that, event, because the argument that there’s no evidence to show that the environment of a gay marriage is worse for children than a straight marriage seems to flow DIRECTLY into the idea that banning individuals from entering into these unions harms those children who could be raised in that environment but instead will be raised in some other environment – I assume everyone agrees that ceteris paribus it’s better for a kid to be raised by two parents than by one, etc. (And yes, “ceteris paribus” is carrying a ton of weight there.)

      • Aaron B. says:

        This, thank you for stating clearly what I snark-failed at.

      • Djur says:

        Wouldn’t studies looking at the effects of being raised by a gay partnership (a) make some effort to control for marital status and (b) not necessarily capture the kind of harm that prohibition causes?

        • Medrawt says:

          I can’t speak to (a), but my presumption with (b) is that there is a body of social science research showing that while wonderful exceptions abound, it’s better on average for kids to not be raised in foster homes or by single parents, and instead for them to be raised by a (literal) couple of mutually invested adults.

          But that being said, it’s always struck me as a very weird rabbit hole for this debate to go down, again one that it’s sort of been forced to because there aren’t any actual good legal arguments against gay marriage that wouldn’t at minimum involve drastic remodeling of the government’s conception of state marriage as well. The only “respectable” form of this argument would be to argue that the state shouldn’t allow gay marriage because that would make it easier for gay people to have or adopt children, and the state shouldn’t promote that because it’s affirmatively worse for children to be raised by gay parents than any other configuration that state either explicitly or implicitly promotes … and the shit-eating “kids should have role models of both genders!” argument dies on the rocks of single parenthood and single-adult foster homes, and all you’re left with is “gays are perverts, and we shouldn’t let kids be raised by perverts.”

          I mean, it’s hard and annoying work trying to come up with halfway respectable versions of what all this bullshit is supposed to mean, because it’s mealymouthed bullshit.

        • catclub says:

          I thought the argument Roberts was getting at was that married gay couples are no better for children that unmarried gay couples.
          Which is might be true, but is probably irrelevant.

  14. Yeah, they got nuthin’.

    The people arguing for the law in court in embarrassed of the argument that the people passing the law made when they passed it.

  15. Murc says:

    I do teach argument and did do forensics in high school, so I know both what the former entails and what the latter occasionally requires, i.e. having to take the AFF or NEG of a case based on a draw instead of a deeply held belief

    I actually quit forensics because I refused to do this. The exchange with my teacher went something like:

    “I can’t say these things. They’re not true. And where they ARE true, they’re disingenuous.”

    “That’s not the point, though. The point is to hone your debating skills. If you’re worried about scoring, don’t worry, you aren’t going to be judged on the factual strength of your argument.”

    The entire exercise struck me even then as intellectually bankrupt.

    • Lee Rudolph says:

      Our friends the social psychologists (all right, my friend the social psychologist—but, hey, I carpooled with him for most of 25 years, so he’s got to be right, right?) have plenty of experimental evidence that someone given the task of preparing and presenting an argument in favor of a position will, afterwards, generally see it more favorably, and often claim to have always believed it, even when they in fact had disavowed it before performing the task.

      I don’t know if this effect appears in debaters; the formalities of the genre might, I suppose, innoculate them somewhat.

      • tt says:

        I think this effect does appear, and also, it’s a very good thing, in order to counter other cognitive biases. In particular, if you seriously (and with incentives) try to give the best possible argument for a position counter to your natural inclinations, and still find it wanting, that should make you more confident in your initial position than if you had defended it all along.

    • Anonymous says:

      Thinking seriously about how to argue this case for the Prop 8 side, all you can really do is invoke the Parade of Horribles: all right, Justice Kagan, then why can’t marriage be defined to include more than two people? Why can’t I marry everyone who’s my friend on Facebook? What *principled* reason is there for stopping at two? And how is that any less arbitrary than requiring heterosexuality?

      Mind you, I don’t think that’s a GOOD argument, but it’s better than “teh babiez!!!”

  16. oldster says:

    CHIEF JUSTICE ROBERTS: Can I ask you a problem about—it seems to me that your position that you are supporting is somewhat internally inconsistent. We see the argument made that there is no problem with extending marriage to [biracial] couples because children raised by [biracial] 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 [biracial] couples to marriage. Which is it?

    This, I think, is actually the stupidest thing quoted above. “Internally inconsistent”??? “Which is it?”???

    We really need to work on the other versions of this:

    CHIEF JUSTICE ROBERTS: Can I ask you a problem about—it seems to me that your position that you are supporting is somewhat internally inconsistent. We see the argument made that scarfs can keep people warm in the winter. And the other argument is that scarfs can be used to strangle people. Which is it?

    Un f-ing believable. Stupider than anything Cooper said–and that’s a high bar!

    • Bobby Thomson says:

      Here’s the appropriate analogy:

      CHIEF JUSTICE ROBERTS: Can I ask you a problem about—it seems to me that your position that you are supporting is somewhat internally inconsistent. We see the argument made that there is no problem with offering limes to English sailors because English sailors eating limes are doing just fine and there is no evidence that they are being harmed. And the other argument is that denying limes to English sailors harms them by depriving them of Vitamin C, resulting in scurvy. Which is it?

      With due respect to the Chief Justice (none), his argument is really, really fucking stupid.

  17. mxyzptlk says:

    MR. COOPER: Thank you, Justice Kennedy. I have two points to make on them. The first one is this: The Plaintiffs’ expert acknowledged that redefining marriage will have real-world consequences, and that it is impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be. And among those real-world consequences, Your Honor, we would suggest are adverse consequences.

    Someone on the bench should just explain argumentum ad metum to Mr. Cooper and send him away to do his homework.

  18. LeeEsq says:

    Malaclypse, you forgot that Lewis also liked his cakes and ales

  19. montag2 says:

    “And for the best impersonation of Ralph Kramden by a petitioner before the Supreme Court in 2013, Charles J. “Chuck” Cooper!”

  20. Joe says:

    This guy actually argued a few cases in the past in front of the USSC.

    http://www.oyez.org/advocates/c/c/charles_j_cooper

  21. R. Porrofatto says:

    Gee, if the State’s principal interest in marriage is in regulating procreation, then it seems to me they are also saying the State should ban the use of contraception by married people, and make it legal only for unmarried people, for whom the State has no interest in regulating procreation.

    Clearly, I am not a lawyer.

    • John says:

      I think this is wrong. They’re not saying that the purpose of marriage is to encourage procreation, but to regulate it, which could mean discouraging it.

  22. Ken says:

    Olson, representing the side arguing for SSM, characterizes marriage as providing “the right of privacy, liberty, association, spirituality, and identity”.

    Cooper, representing the side arguing against SSM, characterizes it as: “regulating procreation”.

    For some reason this tickles me. It also reminds me of Ben Tre; “we had to destroy the institution in order to save it.”

  23. dr z says:

    Roberts is an idiot or not very bright – there is no internal contradiction at all. The gist of the argument is that, not only would kids not be harmed by having gay parents, they would in fact be doing even better if their gay parents were allowed to marry. Therefore both assertions Roberts brings up can be true and self-consistent:
    1) “there would not be a problem with extending marriage to same-sex couples because children raised by same-sex couples are doing just fine ” (i.e. kids would not be harmed by having gay parents)
    AND
    2) “Proposition 8 harms children by not allowing same-sex couples to marriage” (since kids would be doing even better if they gay parents could marry, therefore prop 8 harms children by not allowing them to live in that better for them environment)

  24. Jean Louise Finch says:

    What I got out of the old-people-getting married exchange is that neither Cooper nor, apparently, the male Justices, understand the basics of the female reproductive system. Women over the age of 55 are biologically unable to have children. It’s called menopause. (And yes there are women whose menopause is later, but the point is the same).

    Can I just say it still freaks me out to see Boies and Olson with their arms around each other? I wouldn’t believe it in a movie, if the lawyers from Bush v. Gore united to fight for gay marriage.

    • CJColucci says:

      That sort of thing, at a much lower-profile level, is far more common among lawyers than you might think. Whether that is a good or a bad thing Ileave to others.

  25. cpinva says:

    seriously, did any thinking person actually expect a cogent argument from cooper, on why prop. 8 should be upheld? given the transparent weaknesses of his case, one wonders why he agreed to take it in the first place? i can only conclude that he is a true believer.

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