Gay Week at SCOTUS

03.28.13

The Weirdest SCOTUS Gay Marriage Questions: Scalia, Thrusting, & More

Hint: A lot came from Justice Scalia. See the five most bizarre moments from the Supreme Court’s Prop 8 and DOMA arguments this week, from cellphones to the ‘essential thrust.’

Anybody else got a bit of a Supreme Court hangover?

The Supreme Court spent Tuesday and Wednesday arguing about gay marriage with proponents and opponents of the Defense of Marriage Act and California’s gay marriage ban, Prop 8. To be sure, it was a seminal moment in American history. But transcripts of the arguments can sometimes read like they were written by a lawyerly Samuel Beckett—less humor, more absurdity. One minute we’re weighing the perspective of the 40,000 children of gay parents who want their parents’ unions validated with marriage, the next minute Justice Antonin Scalia is warning y’all to watch out because gay marriage is younger than cellphones and the Internet. One minute we’re considering whether the proponents of Prop 8 even have standing to defend the law, and the next we’re talking about procreation and “thrusting.”

It was a weird two days.

But you don’t have to subject yourself to reading 200-plus pages of transcripts to see why. We boiled down the five weirdest, silliest, or most head-scratching moments from the SCOTUS arguments on Tuesday and Wednesday, and present them to you here:

Alito: How are we supposed to rule if gay marriage is younger than cellphones and the Internet?

Justice Samuel Alito rightfully warned against a sweeping gay marriage decision during oral arguments on Monday. After all, we wouldn’t want to impose gay marriage hastily on red states that haven’t even come around to civil unions yet; that might cause divisiveness and more harm than good for gay people already living there. But the reason Alito gave from the bench for his hesitance was … different. “Same-sex marriage is very new. I think it was first adopted in The Netherlands in 2000,” Alito said. “It may turn out to be a good thing; it may turn out not to be a good thing … But you want us to step in and render a decision based on an assessment of the effects of this institution, which is newer than cell phones or the Internet? I mean we—we are not—we do not have the ability to see the future.”

Solicitor General Donald Verrilli responded by saying, “California has been anything but cautious” and has passed equal-rights laws such as equal parenting and adoption rights. Scalia responded by pointing out that, while that may be true in California’s case, the rest of the country has been cautious. “And we’re—and you are asking us to impose this on the whole country, not just California.”

“No, respectfully Justice Scalia, we are not,” responded Verrilli. “Our position is narrower than that.” He maintained that Prop 8 challengers were not “taking the position that it is required throughout the country.”

Kagan: If it’s a matter of procreation, does that mean older and sterile people can’t get married too? Also: “Thrusting.”

The main qualm of Charles Cooper, lead attorney of the Prop 8 proponents, with redefining marriage as a genderless institution was that doing so would “sever its abiding connection to its historic traditional procreative purposes.” He confirmed this viewpoint to liberal Justice Elena Kagan with the delightfully unfortunate choice of words: “I—Your Honor, that’s the essential thrust of our—our position, yes.” That’s when Kagan pounced.

“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?”

“No, Your Honor, it would not be constitutional,” Cooper conceded.

A short while later, Kagan clinched the zinger: “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 erupted in the courtroom.

Justice Scalia, however, was not about to miss out on the laughs: “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?’…I suspect this court would hold that to be an unconstitutional invasion of privacy, don’t you think?”

After more courtroom laughter subsided, Kagan spluttered, “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.”

Scalia and Cooper: May I answer your question with a question?

Scalia had another shining moment when he questioned Theodore Olson, the lead attorney opposing Prop 8, about the apparently crucial detail of timelines. “We don’t prescribe law for the future. We decide what the law is. I’m curious, when did it become unconstitutional to exclude homosexual couples from marriage?” he asked. “1791? 1868, when the Fourteenth Amendment was adopted?…When, when, when did the law become this?”

Olson snappily responded: “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: “Don’t give me a question to my question.” Once again, Scalia got laughs from the courtroom.

Why won’t you mention concrete things?! Here, let me.

It can be exasperating being a Supreme Court justice. After enduring a longish, vague speech from Cooper about the “real-world consequences” of redefining marriage, Scalia cut in and just did the job himself: “Mr. Cooper, let me—let me give you 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 permit adoption by same-sex couples, and there’s considerable disagreement 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 permit adoption by same-sex couples for that reason.”

Justice Ruth Bader Ginsburg: “California does.”

Scalia: “I don’t think we know the answer to that. Do you know the answer to that, whether it harms or helps the child?”

Cooper: “No, Your Honor. And there’s—”

Scalia: “But that’s a possible deleterious effect, isn’t it?”

Cooper: “Your Honor, it is certainly among the—”

Ginsburg: “It wouldn’t be in California, Mr. Cooper, because that’s not an issue, is it? In California, you can have same-sex couples adopting a child.”

Cooper: “That’s right, Your Honor. That is true. But—but, Your Honor, here’s the point—”

Poor Cooper then proceeded to get cut off yet again, and we do not envy the man.

Should you all even be here right now?

The kicker to the entire event was the justices’ uncertainty over whether this should all even be happening. A significant amount of time in both the arguments for Hollingsworth v. Perry (the Prop 8 case) and United States v. Windsor (the DOMA case) was devoted to pondering whether proponents of the anti-gay laws even have standing to defend them. That is, you only get the right to sue if you can show that you’ve suffered a specific injury. Without being able to show that, the justices throw you out and everybody goes home.

Tuesday’s hearing had barely even begun before Justice Ginsburg pointedly asked, “Have we ever granted standing to proponents of ballot initiatives?” To which anti-gay marriage Cooper responded, “No, Your Honor, the court has not.” He went on to try and argue that the supposed injury wasn’t “to the individual proponents; it’s the injury to the state.” Justices John Roberts, Sonia Sotomayor, Ginsburg, and Kagan and seemed skeptical about that, though three of the court’s other justices (Scalia, Kennedy, and Alito) seemed to think the proponents did have a right to defend Prop 8 in court.