Part 1 of Rob’s Snarky Play-by-Play of the Prop 8 Hearing
March 26th, 2013
I downloaded the transcript and audio and simply started typing as I listened. I’ve done minimal formatting and proofing so please forgive the many errors. The time codes correspond roughly to the relevant spot in the downloadable audio. Cooper (the anti-same-sex marriage attorney spoke first). I’ll do our side in my next post.
11:00 Cooper begins by saying the Court has to decide whether the Constitution should put a stop to the ongoing democratic debate and answer this question for all 50 states. Cooper says such a thing can only happen if “no rational, thoughtful person of goodwill could possibly disagree with them in good faith on this agonizingly difficult issue.”
Agonizing difficult issue? When did that become the position of our opponents? I thought it was supposed to be perfectly obvious that marriage can only be between one man and one woman.
This is the start of their show of reasonableness, their feigned demonstration of no ill-will against gays.
12:00 Cooper brings up Baker v Nelson from 1971, when SCOTUS dismissed same-sex marriage as having no substantial federal question. Ginsburg SMACKS HIM DOWN! Baker was many years ago, even gender-based classifications weren’t part of the law, and homosexuality itself was illegal in some places so “ I don’t think we can extract much in Baker v. Nelson.”
Shorter Ginsburg: “Ain’t NOBODY got time for Baker!”
13:00 Kennedy says he’s struggling with whether Prop 8 is about gender-classification (which requires higher scrutiny) rather than sexual orientation (which does not).
Cooper says no, this is not about gender, it’s about sexual orientation.
14:12 Sotomayor asks:
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?
And Cooper stuns me by replying:
Your Honor, I cannot. I do not have any — anything to offer you in that regard.
How the hell did that happen? NOM’s favorite lawyer is saying there’s no rational reason to discriminate on the basis of sexual orientation
15:10 Sotomayor springs the trap:
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?
Cooper says that marriage is different because it’s about couples and oppo-sexers and same-sexers are just different kinds of couples. Also, gays don’t count as a “class” as SCOTUS has traditionally defined “class.”
Sotomayor throws up her hands:
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?
Coopers stumbles about some more and basically comes up with a statement that it’s irrational“arbitrary and capricious” to discriminate against gays in just about everything except marriage.
18:00 Kagan pursues that:
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?
Cooper says yes, and Kagan says while that might establish a reason for not including same-sex couples in marriage, does he have any reasons for deliberately excluding them? And Cooper says says marriage as a “genderless” institution” could lead to harm.
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?
I don’t know if that’s a snarky question but I like how she phrased it.
AND COOPER DUCKS THE QUESTION! He says the proper question is whether allowing ssm would advance the interest of the state.
In other words (my words, not Cooper’s), it doesn’t really matter whether ssm would be bad. It’s enough to show that it wouldn’t benefit the State. Because, you know, we only let citizens have their rights when it benefits the State, and screw the Declaration of Independence and its statement that purpose of government is to secure the rights to life, liberty, and the pursuit of happiness.
Kennedy asks if Cooper is conceding that ssm will do no harm.
Cooper: NO! We can’t see the future and can’t know what the conwequences would be, but they would be bad. Think I’m being unfair? I quote Cooper:
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.
And then he says it makes sense for California should “hit the pause button” and wait for more data from states where it’s legal.
21:45 Scalia enters the fray! And he practically out-and-out states that he’s now going to argue Cooper’s position better than Cooper’s being doing (seriously!). Scalia says ssm leads to legalization of adoption by same-sex couples, and we don’t know whether that’s harmful to children, and some states don’t allow such adoption.
Ginsburg points out that California does allow it, making this Scalia’s whole point stupid and moot and why the crap is he wasting our time with this shit.
Scalia wastes a little more time with this shit
Cooper grabs the
floating turd life raft and say it’s up to our side to show not just that there will be no harm from ssm but the question itself is beyond debate.
Kennedy brings up the 40,000 kids in CA being raised by same-sex parents: “The voice of those children is important in this case, don’t you think?”
Cooper gives a yeah-but reply, saying we have no evidence about the impact on their kids of letting same-sex parents marry.
Because, I guess, marriage (and that word marriage) is vitally important to the welfare of kids being raised by oppo-sexers but when it comes to same-sexers, well, golly, we just don’t know that marriage would be one bit better than domestic partnerships.
27:00 Breyer breaks in:
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?
Cooper gives us a lesson in vagueness:
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.
Kagan asks about people over 55. Can we ban them from marrying because they don’t do a lot of procreating?
Cooper tries to dispute this.
The chamber laughs at him. They laugh at him.
Cooper struggles to create an argument: We don’t want extra-marital breeding, so any hetero couple who are going to live together for a long time should marry, just so we maintain the norm of people marrying before they live together (really?)
31:40 Ginsburg points out that prisoners can marry even if they can’t ever procreate. Cooper replies that this particular precedent applied to minimum security prisoners who will eventually get out and possibly breed.
And then Cooper’s time was up.