LISTEN AND READ FOR YOURSELF: Audio and Transcript of Prop. 8 Hearing
BY Lucas Grindley
March 26 2013 12:22 PM ET
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 (pictured left): But they are not the only ones.
GENERAL VERRILLI: -- that States that haven'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 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 attention, particularly, Your Honor, as it comes 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 (pictured left): 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.)