Excerpts from the arguments before the Supreme Court about California’s Proposition 8 ban on same-sex marriage:
On the question of children of same-sex parents (Justice Anthony Kennedy and Charles Cooper, lawyer for the defenders of Proposition 8):
KENNEDY: 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?
COOPER: 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.
On the question of redefining marriage (Justice Antonin Scalia):
SCALIA: 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.
On the rights of same-sex couples (Theodore Olson, lawyer for two same-sex couples, and Chief Justice John Roberts):
OLSON: 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 a personal right. It’s a part of the right of privacy, association, liberty, and the pursuit of happiness.
ROBERTS: When the institution of marriage developed historically, people didn’t [go] 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.
On the Constitution and same-sex couples (Olson and Scalia):
SCALIA: We decide what the law is. I’m curious, when — when did — when did it become unconstitutional to exclude homosexual couples from marriage? In 1791? In 1868, when the Fourteenth Amendment was adopted?
OLSON: 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.
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) . . . When do you think it became unconstitutional? Has it always been unconstitutional?
OLSON: 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.