The Ticket

In gay marriage case, justices focus and trade laughs on fertility question

Liz Goodwin
The Ticket

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Supreme Court Associate Justice Elena Kagan attends U.S. President Barack Obama's State of the Union speech. (Chip …

In Tuesday's oral arguments over whether California's ban on gay marriage is unconstitutional, a few of the liberal Supreme Court justices took aim at one of the central arguments made by gay marriage opponents: that the ability to naturally procreate is key to the definition of marriage.

Charles Cooper, the attorney representing proponents of California's Proposition 8 ban on gay marriage, argued that allowing same-sex nuptials would fundamentally change the definition of marriage for the worse.

"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 the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults," Cooper said.

Justice Elena Kagan, an appointee of President Barack Obama, pressed Cooper on that argument, asking him why then the government could not bar couples who are both over the age of 55 from marrying, on the assumption that they are infertile.

Cooper replied that it would violate the Constitution to ban older people from marrying.

"Your Honor, even with respect to couples over the age of 55, it is very rare that both couples—both parties to the couple are infertile," Cooper began, before he was interrupted by the audience in the courtroom erupting into laughter.

"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," Kagan retorted, provoking more laughter.

Justice Antonin Scalia jumped into the fray, joking that "Strom Thurmond was not the chairman of the Senate committee when Justice Kagan was confirmed."

Thurmond, the late South Carolina Republican senator, fathered children well into his 70s with his decades-younger wife. Kagan pointed out that in her hypothetical, both members of the couple would be over 55, not just the man.

Justice Ruth Bader Ginsburg also cast doubt on the procreation aspect of Cooper's argument, reminding him that the Supreme Court has ruled in the past that prisoners have a right to marry even if they are locked up and unable to procreate with their new spouse. Cooper replied that even in that case, the prison was a co-ed facility and it's possible the prisoner would have had children.

Outside of this exchange, Cooper did not rely heavily on the natural procreation point in arguing the government should bar gay people from marrying. In his brief opening statement, Cooper urged the justices to allow Americans to engage in "an an earnest debate over whether the age-old definition of marriage should be changed to include same-sex couples" by not declaring from the bench that gay marriage bans are unconstitutional.

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