Should the case be before the court?
Chief Justice John Roberts: But a state can't authorize anyone to proceed in federal court, because that would leave the definition under Article III of the federal Constitution as to who can bring — who has standing to bring claims up to each state. And I don't think we've ever allowed anything like that..
Justice Anthony Kennedy: The problem — the problem with the case is that you're really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that metaphor, there's a wonderful destination, it is a cliff. Whatever that was. ... But you're — you're doing so in a — in a case where the opinion is very narrow. Basically that once the state goes halfway, it has to go all the way or 70 percent of the way, and you're doing so in a case where there's a substantial question on — on standing. I just wonder if — if the case was properly granted.
On sexual orientation
Justice Sonia Sotomayor: 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?
Charles Cooper, lawyer defending Prop 8: I cannot. I do not have any — anything to offer you in that regard. . . . 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 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.
On the Constitution and same-sex couples
Justice Antonin Scalia: The California Supreme Court decides what the law is. That's what we decide, right? We don't prescribe law for the future. 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? .
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.
On the rights of same-sex couples
Ted Olson, plaintiffs' attorney: 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.
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.
On procreation and age
Justice Elena Kagan: 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?
Cooper: Even with respect to couples over the age of 55, it is very rare that both couples — both parties to the couple are infertile, and the traditional — (laughter).
Kagan: No, really, because if the couple — 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)