LISTEN AND READ FOR YOURSELF: Audio and Transcript of Prop. 8 Hearing
BY Lucas Grindley
March 26 2013 1:22 PM ET
JUSTICE BREYER (pictured): 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, the California Constitution says in terms that among the responsibilities of official proponents, in addition to the many other esponsibilities 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 changed to include same-sex couples. The question before this court is whether the Constitution puts a stop to that debate and answers this question for 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 Court is whether ongoing democratic all 50 States. And 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 the classification impacts, as it clearly does, same-sex 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 - 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.
JUSTICE KAGAN: Mr. Cooper, could I just understand your argument. In reading the briefs, it 1seems 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, it seems to me that you should have Kagan's question.
MR. COOPER: Thank you, have two points to make on them. The first one is this: expert acknowledged that redefining 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 -- certainly among the -
JUSTICE GINSBURG: It wouldn't it is be in 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 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 married who can't have children. So take a state that does allow adoption and say there what's 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 -
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 off 55, it's very rare that both couples -- both parties to the couple are infertile and the traditional -
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, there are not a lot of children coming out of that marriage.
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?
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.
MR. COOPER: Very few men outlive their own fertility.
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 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 somebody who is locked up in prison and who is not 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 that going right 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, the case of among the incidents of marriage that are not destroyed by that -- at least that prison context, was the that had previously permitted marriage in pregnancy and childbirth. The Court -- the Court here emphasized that, expectation of eventual consummation of the marriage and legitimation of -- of the children. So that -
CHIEF JUSTICE ROBERTS: Thank you,
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 -
CHIEF JUSTICE ROBERTS: Well, I think it's 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 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 -
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 individual 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 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 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 proponents, whoever they were, and this could be 125 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 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 built into the system where it's an officer of how do to that either 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 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 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 individual 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 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 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 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.
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 -
JUSTICE SCALIA (pictured left): 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 individuals 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 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 individuals 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.