Americans on both side of the issue of same-sex marriage would agree that the U.S. Supreme Court’s hearing of California’s Proposition 8, which in 2008 denied same sex couples the right to marry in this state, is a serious matter. That didn’t keep justices, lawyers, and spectators from laughing at parts of this morning’s history-making arguments.
Here—in order but out of context—are a handful of exchanges that elicited giggles from the gallery:
Justice Kagan: 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 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)
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. ...
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 - (Laughter.)
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 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.)
See a full transcript of the hearing .