Justice Kagan tipped her hand when questioning Charles J. Cooper, a lawyer for opponents of same-sex marriage. Kagan questioned the logic behind the assertion that legalizing gay marriage harmed traditional marriage.
“How does this cause and effect work?” she asked.
Mr. Cooper said that “the state’s interest and society’s interest in what we have framed as ‘responsible procreation’ is vital.” So, for the record, the argument against gay marriage, according to Mr. Cooper, rests on the idea that same-sex sex is irresponsible and opposite-sex sex is responsible.
Or, to be a little fairer to Mr. Cooper, he argues that marriage should be for those who can reproduce on their own, a point that liberal justices questioned. Justice Stephen G. Breyer pointed out that “There are lots of people who get married who can’t have children.” Justice Kagan brought up that we allow couples who are past the age of fertility to get married. This prompted Justice Scalia to bring up Strom Thurmond, who fathered a child at 77 and served in the Senate at 100. I'm never sure how seriously to take Scalia, and I think that's what he's going for.
The hearing was only seconds old when Chief Justice Roberts introduced a potential out for the Court: they could decide that the opponents to same-sex marriage, who are challenging a judicial ban on Prop 8, a 2008 ballot initiative in California banning gay marriage, do not have standing to bring the case. That would leave people wondering why the Supreme Court took the case in the first place, but seeing as the Justices are openly wondering this themselves, it wouldn't be much of a leap.
All of this is just phase 1. Tomorrow the Justices will hear arguments on the Defense of Marriage Act, which defines marriage as between one man and one woman. President Bill Clinton signed DOMA into law, a decision he now regrets.