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.