Supreme Court Prop 8 Transcript

 

Supreme Court

P R O C E E D I N G S

(10:07 a.m.)

CHIEF JUSTICE ROBERTS: We'll hear argumentthis morning in Case 12-144, Hollingsworth v. Perry.

Mr. Cooper?

ORAL ARGUMENT OF CHARLES J. COOPER

ON BEHALF OF THE PETITIONERS

MR. COOPER: Thank you, Mr. Chief Justice, and may it please the Court New York's highest court, in a case similar to this one, remarked that until quite recently, it was an accepted truth for almost everyone who ever lived in any society in which marriage existed -

CHIEF JUSTICE ROBERTS: Mr. Cooper, we have jurisdictional and merits issues here. Maybe it'd be best if you could begin with the standing issue.

MR. COOPER: I'd be happy to, Mr. Chief Justice. Your Honor, the official proponents of Proposition 8, the initiative, have standing to defend that measure before this Court as representatives of the people and the State of California to defend the validity of a measure that they brought forward.

JUSTICE GINSBURG: Have we ever granted standing to proponents of ballot initiatives?

MR. COOPER: No, Your Honor, the Court has not done that. But the Court has never had before it a clear expression from a unanimous State's high court that -

JUSTICE GINSBURG: Well, this is -- this is -- the concern is certainly, the proponents are interested in getting it on the ballot and seeing that all of the proper procedures are followed, but once it's passed, they have no proprietary interest in it. It's law for them just as it is for everyone else. So how are they distinguishable from the California citizenry in general?

MR. COOPER: They're distinguishable, Your Honor, because the Constitution of the State of California and its election code provide, according to the unanimous interpretation of the California Supreme Court, that the official proponents, in addition to the other official responsibilities and authorities that they have in the initiative process, that those official proponents also have the authority and the responsibility to defend the validity of that initiative -

JUSTICE SCALIA: I guess the attorney general of this State doesn't have any proprietary interest either, does he?

MR. COOPER: No, Your Honor, nor did -

JUSTICE SCALIA: But -- but he can defend it, can't he -

MR. COOPER: -- nor did -

JUSTICE SCALIA: -- because the law says he can defend it.

MR. COOPER: That's right, Your Honor. Nor did the legislative leaders in the Karcher case have -

JUSTICE KAGAN: Could the State -

MR. COOPER: -- any particular enforcement -

JUSTICE KAGAN: -- could -- could the State assign to any citizen the rights to defend a judgment of this kind?

MR. COOPER: Justice Kagan, that would be a -- a very tough question. It's -- it's by no means the question before the Court, because -- because it isn't any citizen, it's -- it is the -- it is the

official proponents that have a specific and -- and carefully detailed -

JUSTICE KAGAN: Well, I just -- if you would on the hypothetical: Could a State just assign to anybody the ability to do this?

MR. COOPER: Your Honor, I think it very well might. It very well might be able to decide that any citizen could step forward and represent the interests of the State and the people in that State -

CHIEF JUSTICE ROBERTS: Well, that would be -- I'm sorry, are you finished?

MR. COOPER: Yes, Your Honor.

CHIEF JUSTICE ROBERTS: Okay. That -- that may be true in terms of who they want to represent, but -- 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.

MR. COOPER: But, Your Honor, I guess the point I want to make is that there is no question the State has standing, the State itself has standing to represent its own interests in the validity of its own enactments. And if the State's public officials decline to do that, it is within the State's authority surely, I would submit, to identify, if not all -- any citizen or at least supporter of the measure, certainly those, that that very clear and identifiable group of citizens -

JUSTICE KENNEDY: Well, the Chief -- the Chief Justice and Justice Kagan have given a proper hypothetical to test your theory. But in this case the proponents, number one, must give their official address, they must pay money, and they must all act in unison under California law. So these five proponents were required at all times to act in unison, so that distinguishes -- and to register and to pay money for the -- so in that sense it's different from simply saying any citizen.

MR. COOPER: But of course it is, and I think the key -

JUSTICE SOTOMAYOR: But can you tell me -that's a factual background with respect to their right to put the ballot initiative on the ballot, but how does it create an injury to them separate from that of every other taxpayer to have laws enforced?

MR. COOPER: Your Honor, the -- the question before the Court, I would submit, is not the injury to the inpidual proponents it's the injury to the State. The -- the legislators in the Karcher case had no inpidual particularized injury, and yet this Court recognized they were proper representatives of the State's interests, the State's injury -

JUSTICE SOTOMAYOR: At least one of the amici have suggested that it seems counterintuitive to think that the State is going to delegate to people who don't have a fiduciary duty to them, that it's going to delegate the responsibility of representing the State to inpivuals who have their own views. They proposed the ballot initiative because it was their inpidual views, not necessarily that of the State. So -

MR. COOPER: Well -

JUSTICE SOTOMAYOR: -- Justice Scalia proffered the question of the Attorney General. The Attorney General has no personal interest.

MR. COOPER: True.

JUSTICE SOTOMAYOR: He has a fiduciary obligation.

MR. COOPER: The Attorney General, whether it's a fiduciary obligation or not, is in normal circumstances the representative of the State to defend the validity of the State's enactments when they are challenged in Federal court. But when that officer doesn't do so, the State surely has every authority and I would submit the responsibility to identify particularly in an initiative -- an initiative context.

JUSTICE SOTOMAYOR: Why isn't the fiduciary duty requirement before the State can designate a representative important?

MR. COOPER: Your Honor, I would submit to you that I don't think there's anything in Article III or in any of this Court's decisions that suggest that a representative of a State must be -- have a fiduciary duty, but I would also suggest -

JUSTICE SOTOMAYOR: Well, generally you don't need to specify it because generally the people who get to enforce the legislation of the government are people who are in government positions elected by the people.

MR. COOPER: And Your Honor -

JUSTICE SOTOMAYOR: Here these inpiduals are not elected by the people or appointed by the people.

MR. COOPER: And the California Supreme Court specifically addressed and rejected that specific argument. They said it is in the context when the public officials, the elected officials, the appointed officials, have declined, have declined to defend a statute. A statute that, by the way, excuse me, in this case a constitutional amendment, was brought forward by the initiative process.

The Court said it is essential to the integrity, integrity of the initiative process in that State, which is a precious right of every citizen, the initiative process in that State, to ensure that when public officials -- and after all, the initiative process is designed to control those very public officials, to take issues out of their hands.

And if public officials could effectively veto an initiative by refusing to appeal it, then the initiative process would be invalidated.

JUSTICE BREYER: That's -- historically, I think, 40 States, many States have what was called a public action. A public action is an action by any citizen primarily to vindicate the interest in seeing that the law is enforced. Now, that's the kind of action I think that this Court has interpreted the Constitution of the United States, case in controversy, to say that it does not lie in the Federal system.

And of course, if that kind of action is the very kind that does not lie, well, then to say, but they really feel it's important that the law be enforced, they really want to vindicate the process, and these are people of special interests, we found the five citizens who most strongly want to vindicate the interest in the law being enforced and the process for making the law be enforced, well, that won't distinguish it from a public action.

But then you say, but also they are representing the State. At this point, the Dellinger brief which takes the other side of it is making a strong argument, well, they are really no more than a group of five people who feel really strongly that we should vindicate this public interest, and have good reason for thinking it.

So you have read all these arguments that it's not really the agent and so forth. What do you want to say about it?

MR. COOPER: What I want to say, Your Honor, is according to the California Supreme Court, theCalifornia Constitution says in terms that among the responsibilities of official proponents, in addition to the many other responsibilities that they step forward and they assume in the initiative process, among those responsibilities and authorities is to defend that initiative if the public officials which the initiative process is designed to control have refused to do it.

It might as well say it in those terms, Your Honor.

CHIEF JUSTICE ROBERTS: Counsel, if you want to proceed to the merits, you should feel free to do so.

MR. COOPER: Thank you very much, Your Honor. My -- my -- excuse me. As I was saying, theaccepted truth -- excuse me. The accepted truth that -that the New York high court observed is one that is changing and changing rapidly in this country as people throughout the country engage in an earnest debate over whether the age-old definition of marriage should be changed to include same-sex couples.

The question before this Court is whether the Constitution puts a stop to that ongoing democratic debate and answers this question for all 50 States. And it does so only if the Respondents are correct that no rational, thoughtful person of goodwill could possibly disagree with them in good faith on this agonizingly difficult issue.

The issues, the constitutional issues that have been presented to the Court, are not of first impression here. In Baker v. Nelson, this Court unanimously dismissed for want of a substantial Federal question.

JUSTICE GINSBURG: Mr. Cooper, Baker v. Nelson was 1971. The Supreme Court hadn't even decided that gender-based classifications get any kind of heightened scrutiny.

MR. COOPER: That is -

JUSTICE GINSBURG: And the same-sex intimate conduct was considered criminal in many States in 1971, so I don't think we can extract much in Baker v. Nelson.

MR. COOPER: Well, Your Honor, certainly I acknowledge the precedential limitations of a summary dismissal. But Baker v. Nelson also came fairly fast on the heels of the Loving decision. And, Your Honor, I simply make the observation that it seems implausible in the extreme, frankly, for nine justices to have -- to have seen no substantial Federal question if it is true, as the Respondents maintain, that the traditional definition of marriage insofar as -- insofar as it does not include same-sex couples, insofar as it is a gender definition is irrational and can only be explained, can only be explained, as a result of anti-gay malice and a bare desire to harm.

JUSTICE KENNEDY: Do you believe this can be treated as a gender-based classification?

MR. COOPER: Your Honor, I -

JUSTICE KENNEDY: It's a difficult question that I've been trying to wrestle with it.

MR. COOPER: Yes, Your Honor. And we donot. We do not think it is properly viewed as a gender-based classification. Virtually every appellate court, State and Federal, with one exception, Hawaii, in a superseded opinion, has agreed that it is not a gender-based classification, but I guess it is gender-based in the sense that marriage itself is a gendered institution, a gendered term, and so in the same way that fatherhood is gendered more motherhood is gendered, it's gendered in that sense.

But we -- we agree that to the extent that the classification impacts, as it clearly does, same-sexcouples, that -- that classification can be viewed as being one of sexual orientation rather than -

JUSTICE SOTOMAYOR: 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?

MR. COOPER: Your Honor, I cannot. I do not have any -- anything to offer you in that regard. I think marriage is -

JUSTICE SOTOMAYOR: 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?

MR. COOPER: No, Your Honor, we certainly are not. We -- 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.

But to come back to your precise question, Ithink, Justice Sotomayor, you're probing into whether or not sexual orientation ought to be viewed as a quasi-suspect or suspect class, and our position is that it does not qualify under this Court's standard and -and traditional tests for identifying suspectedness.

The -- the class itself is -- is quite amorphous. It defies consistent definition as -- as the Plaintiffs' own experts were -- were quite vivid on. It -- it does not -- it -- it does not qualify as an accident of birth, immutability in that -- in that sense.

Again, the Plaintiffs -

JUSTICE SOTOMAYOR: So you -- so what -- I don't quite understand it. If you're not dealing withthis as a class question, then why would you say that the Government is not free to discriminate against them?

MR. COOPER: Well, Your Honor, I would think that -- that -- I think it's a -- it's a very different question whether or not the Government can proceedarbitrarily and irrationally with respect to any group of people, regardless of whether or not they qualify under this Court's traditional test for suspectedness.

And -- and the hypothetical I understood you to be offering, I would submit would create -- it would -unless there's something that -- that is not occurring to me immediately, an arbitrary and capricious distinction among similarly situated inpiduals, that -- that is not what we think is at the -- at theroot of the traditional definition of marriage.

JUSTICE KAGAN: Mr. Cooper, could I just understand your argument. 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?

MR. COOPER: I -- Your Honor, that's the essential thrust of our -- our position, yes.

JUSTICE KAGAN: Is -- is there -- so you have sort of a reason for not including same-sex couples. Is there any reason that you have for excluding them? In other words, you're saying, well, if we allow same-sex couples to marry, it doesn't serve the State's interest. But do you go further and say that it harms any State interest?

MR. COOPER: Your Honor, we -- we go further in -- in the sense that it is reasonable to be very concerned that redefining marriage to -- as a genderless institution could well lead over time to harms to that institution and to the interests that society has always -- has -- has always used that institution to address. But, Your Honor, I -

JUSTICE KAGAN: 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?

MR. COOPER: Once again, I -- I would reiterate that we don't believe that's the correct legal question before the Court, and that the correct question is whether or not redefining marriage to include same-sex couples would advance the interests of marriage as a -

JUSTICE KENNEDY: Well, then are -- are you conceding the point that there is no harm or denigration to traditional opposite-sex marriage couples? So you're conceding that.

MR. COOPER: No, Your Honor, no. I'm not conceding that.

JUSTICE KENNEDY: Well, but, then it -- then it seems to me that you should have to address Justice Kagan's question.

MR. COOPER: Thank you, Justice Kennedy. have two points to make on them.

The first one is this: The Plaintiffs' expert acknowledged that redefining marriage will have real-world consequences, and that 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.

But consider the California voter, in 2008, in the ballot booth, with the question before her whether or not this age-old bedrock social institution should be fundamentally redefined, and knowing that there's no way that she or anyone else could possibly know what the long-term implications of -- of profound redefinition of a bedrock social institution would be. That is reason enough, Your Honor, that would hardly be irrational for that voter to say, I believe that this experiment, which is now only fairly four years old, even in Massachusetts, the oldest State that is conducting it, to say, I think it better for California to hit the pause button and await additional information from the jurisdictions where this experiment is still maturing.

 

JUSTICE SCALIA: Mr. Cooper, let me -- let

me give you one -- 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 -- you

must permit adoption by same-sex couples, and there's -there's

considerable disagreement among -- 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 -- do

not permit adoption by same-sex couples for that reason.

 

JUSTICE GINSBURG: California -- no,

California does.

 

JUSTICE SCALIA: I don't think we know the

answer to that. Do you know the answer to that, whether

it -- whether it harms or helps the child?

 

MR. COOPER: No, Your Honor. And there's -there's

-

 

 

JUSTICE SCALIA: But that's a possible

deleterious effect, isn't it?

 

MR. COOPER: Your Honor, it -- it is

certainly among the -

 

 

JUSTICE GINSBURG: It wouldn't be in

 

 

19

 

 

 

 

 

California, Mr. Cooper, because that's not an issue, is

it? In California, you can have same-sex couples

adopting a child.

 

MR. COOPER: That's right, Your Honor. That

is true. And -- but -- but, Your Honor, here's -here's

the point -

 

 

JUSTICE SCALIA: I -- it's true, but

irrelevant. They're arguing for a nationwide rule which

applies to States other than California, that every

State must allow marriage by same-sex couples. And so

even though States that believe it is harmful -- and I

take no position on whether it's harmful or not, but it

is certainly true that -- that there's no scientific

answer to that question at this point in time.

 

MR. COOPER: And -- and that, Your Honor, is

the point I am trying to make, and it is the

Respondents' responsibility to prove, under rational

basis review, not only that -- that there clearly will

be no harm, but that it's beyond debate that there will

be no harm.

 

JUSTICE GINSBURG: Mr. Cooper, you are

defending -- you are opposing a judgment that applies to

California only, not to all of the States.

 

MR. COOPER: That's true, Your Honor. And

if there were a way to cabin the arguments that are

 

 

20

 

 

 

 

 

being presented to you to California, then the concerns

about redefining marriage in California could be

confined to California, but they cannot, Your Honor.

 

JUSTICE KENNEDY: I -- I think there's -there's

substantial -- that there's substance to the

point that sociological information is new. We have

five years of information to weigh against 2,000 years

of history or more.

 

On the other hand, there is an immediate

legal injury or legal -- what could be a legal injury, and that's the voice of these children. There are some

40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want

their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?

 

MR. COOPER: Your Honor, I certainly would not dispute the importance of that consideration. That consideration especially in the political process, where

this issue is being debated and will continue to be debated, certainly, in California. It's being debated elsewhere. But on that -- on that specific question,

Your Honor, there simply is no data.

 

In fact, their expert agreed there is no data, no study, even, that would examine whether or not

 

 

 

 

 

there is any incremental beneficial effect from marriage

over and above the domestic partnership laws that were

enacted by the State of California to recognize,

support, and honor same-sex relationships and their

families. There is simply no data at all that would

permit one to draw -- draw that conclusion.

 

I would recall, Justice Kennedy, the point

made in Romer, that under a rational basis of review,

the provision will be sustained even if it operates to

the disadvantage of a group, if it is -- if it otherwise

advances rationally a legitimate State interest.

 

CHIEF JUSTICE ROBERTS: Mr. Cooper, we will

afford you more time. You shouldn't worry about losing

your rebuttal time, but please continue on.

 

MR. COOPER: Oh -

 

 

JUSTICE BREYER: As long as you are on that,

then I would like to ask you this: Assume you could

distinguish California, suppose we accept your argument

or accept Justice Scalia's version of your argument and

that distinguishes California. Now, let's look at

California. 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?

 

I mean, there are lots of people who get

 

 

22

 

 

 

 

 

married who can't have children. To take a State that

does allow adoption and say -- there, what is the

justification for saying no gay marriage? Certainly not

the one you said, is it?

 

MR. COOPER: You're -

 

 

JUSTICE BREYER: Am I not clear?

 

Look, you said that the problem is marriage

that it is an institution that furthers procreation.

 

MR. COOPER: Yes, Your Honor.

 

JUSTICE BREYER: And the reason there was

adoption, but that doesn't apply to California. So

imagine I wall off California and I'm looking just

there, where you say that doesn't apply. Now, what

happens to your argument about the institution of

marriage as a tool towards procreation? Given the fact

that, in California, too, couples that aren't gay but

can't have children get married all the time.

 

MR. COOPER: Yes, Your Honor. 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.

 

Suppose, in turn -

 

 

 

23

 

 

 

 

 

JUSTICE KAGAN: 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?

 

MR. COOPER: No, Your Honor, it would not be

constitutional.

 

JUSTICE KAGAN: Because that's the same

State interest, I would think, you know. 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?

 

MR. COOPER: 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, and

the traditional -

 

 

(Laughter.)

 

JUSTICE 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.)

 

MR. COOPER: Your Honor, society's -society's

interest in responsible procreation isn't just

 

 

24

 

 

 

 

 

with respect to the procreative capacities of the couple

itself. The marital norm, which imposes the obligations

of fidelity and monogamy, Your Honor, advances the

interests in responsible procreation by making it more

likely that neither party, including the fertile party

to that -

 

 

JUSTICE KAGAN: Actually, I'm not even -

 

 

JUSTICE SCALIA: 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?

 

(Laughter.)

 

JUSTICE SCALIA: I suspect this Court would

hold that to be an unconstitutional invasion of privacy,

don't you think?

 

JUSTICE KAGAN: 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.

 

MR. COOPER: Your Honor, and even asking

about age, you would have to ask if both parties are

infertile. Again -

 

 

JUSTICE SCALIA: Strom Thurmond was -- was

not the chairman of the Senate committee when Justice

Kagan was confirmed.

 

(Laughter.)

 

 

25

 

 

 

 

 

MR. COOPER: Very few men -- very few men

outlive their own fertility. So I just -

 

 

JUSTICE KAGAN: A couple where both people

are over the age of 55 -

 

 

MR. COOPER: I -

 

 

JUSTICE KAGAN: A couple where both people

are over the age of 55.

 

MR. COOPER: And Your Honor, again, the

marital norm which imposes upon that couple the

obligation of fidelity -

 

 

JUSTICE SOTOMAYOR: I'm sorry, where is

this -

 

 

CHIEF JUSTICE ROBERTS: I'm sorry, maybe you

can finish your answer to Justice Kagan.

 

 

JUSTICE SOTOMAYOR: I'm sorry.

 

MR. COOPER: It's designed, Your Honor, to

make it less likely that either party to that -- to that

marriage will engage in irresponsible procreative

conduct outside of that marriage. Outside of that

marriage. That's the marital -- that's the marital

norm. Society has an interest in seeing a 55-year-old

couple that is -- just as it has an interest of seeing

any heterosexual couple that intends to engage in a

prolonged period of cohabitation to reserve that until

they have made a marital commitment, a marital

 

26

 

 

 

 

 

commitment. So that, should that union produce any

offspring, it would be more likely that that child or

children will be raised by the mother and father who

brought them into the world.

 

JUSTICE GINSBURG: Mr. Cooper, we said that

somebody who is locked up in prison and who is not going

to get out has a right to marry, has a fundamental right

to marry, no possibility of procreation.

 

MR. COOPER: Your Honor is referring, I'm

sure, to the Turner case, and -

 

 

JUSTICE GINSBURG: Yes.

 

MR. COOPER: -- I think that, with due

respect, Justice Ginsburg, way over-reads -- way

over-reads Turner against Safley. That was a case in

which the prison at issue -- and it was decided in the

specific context of a particular prison where there were

both female and male inmates, many of them minimum

security inmates. It was dealing with a regulation,

Your Honor, that had previously permitted marriage in

the case of pregnancy and childbirth.

 

The Court -- the Court here emphasized that,

among the incidents of marriage that are not destroyed

by that -- at least that prison context, was the

expectation of eventual consummation of the marriage and

legitimation of -- of the children. So that -

 

 

 

27

 

 

 

 

 

CHIEF JUSTICE ROBERTS: Thank you,

Mr. Cooper.

 

MR. COOPER: Thank you, Mr. Chief Justice.

 

CHIEF JUSTICE ROBERTS: Mr. Olson?

 

ORAL ARGUMENT OF THEODORE B. OLSON

ON BEHALF OF THE RESPONDENTS

MR. OLSON: Thank you, Mr. Chief Justice,

and may it please the Court:

 

I know that you will want me to spend a

moment or two addressing the standing question, but

before I do that, I thought that it would be important

for this Court to have Proposition 8 put in context,

what it does. It walls-off gays and lesbians from

marriage, the most important relation in life, according

to this Court, thus stigmatizing a class of Californians

based upon their status and labeling their most

cherished relationships as second-rate, different,

unequal, and not okay.

 

CHIEF JUSTICE ROBERTS: Mr. Olson, I cut off

your friend before he could get into the merits.

 

MR. OLSON: I was trying to avoid that, Your

Honor.

 

CHIEF JUSTICE ROBERTS: I know -

 

 

(Laughter.)

 

CHIEF JUSTICE ROBERTS: Well, I think it's

 

 

28

 

 

 

 

 

only fair to treat you the same. Perhaps you could

address your jurisdictional argument?

 

MR. OLSON: Yes. I think that our

jurisdictional argument is, as we set forth in the

brief, California cannot create Article III standing by

designating whoever it wants to defend the State of

California in connection with the ballot.

 

JUSTICE KENNEDY: But this is not whoever it

wants. These are five proponents of -- of the measure,

and if we were to accept your argument, it would give

the State a one-way ratchet. The State could go in and

make a defense, maybe a half-hearted defense of the

statute, and -- and then when the statute is held

invalid, simply -- simply leave. On the other hand,

if -- if the State loses, the State can appeal.

 

So this is a one-way ratchet as it favors

the State, and allows governors and other constitutional

officers in different States to thwart the initiative

process.

 

MR. OLSON: That's the -- that's the way the

California Supreme Court saw it with respect to

California law. The governor and the Attorney General

of California are elected to act in the best interests

of the State of California. They made a professional

judgment given their obligations as officers of the

 

 

29

 

 

 

 

 

State of California.

 

The California Supreme Court has said that

proponents -- and by the way, only four of the five are

here. Dr. Tam withdrew from the case because of some -many

things he said during the election campaign.

 

JUSTICE ALITO: Well, Mr. Olson, is it your

position that the only people who could defend a ballot,

a law that's adopted in California through the ballot

initiative are the Attorney General and the governor, so

that if the Attorney General and the governor don't like

the ballot initiative, it will go undefended? Is that

your position?

 

MR. OLSON: I don't -- I don't think it's

quite that limited. I think one of your colleagues

suggested that there could be an officer appointed.

There could be an appointee of the State of California

who had responsibility, fiduciary responsibility to the

State of California and the citizens of California, to

represent the State of California along -

 

 

JUSTICE SCALIA: Who -- who would appoint

him? The same governor that didn't want to defend the

plebiscite?

 

MR. OLSON: Well, that happens all the time.

As you recall in the case of -- well, let's not spend

too much time on independent counsel provisions, but -

 

 

 

30

 

 

 

 

 

(Laughter.)

 

MR. OLSON: The governor -- the government

of the State of California frequently appoints an

attorney where there's a perceived conflict of

interest -

 

 

JUSTICE SCALIA: I suppose -

 

 

MR. OLSON: -- and that person would have a

responsibility for the State and might have

responsibility for the attorneys' fees.

 

CHIEF JUSTICE ROBERTS: I suppose there

might be people out there with their own personal

standing, someone who performs marriages and would like

that to remain open to everyone but would prefer not to

perform same-sex marriages, or other people. We seem to

be addressing the case as if the only options are the

proponents here or the State. I'm not sure there aren't

other people out there with inpidual personalized

injury that would satisfy Article III.

 

MR. OLSON: There might well be in -- in a

different case. I don't know about this case. If there

was, for example, this was an initiative measure that

allocated certain resources of the State of California

and the people -- maybe it was a binary system of people

got resources and other people didn't get resources,

there could be standing. Someone would show actual

 

 

31

 

 

 

 

 

injury.

 

The point, I guess, at the bottom of this is

the Supreme Court, this Court, decided in Raines v. Byrd

that Congress couldn't specify members of Congress in

that context even where the measure depleted or

diminished powers of Congress -

 

 

JUSTICE SOTOMAYOR: Mr. Olson, I think the

bottom line -

 

 

JUSTICE ALITO: The States are not bound by

the same separation of powers doctrine that underlies

the Federal Constitution. You couldn't have a Federal

initiative, for example. They're free of all that.

 

So start from the proposition that a State

has standing to defend the constitutionality of a State

law un- -- beyond dispute. The question then is, who

represents the State?

 

Now, in a State that has initiative, the

whole process would be defeated if the only people who

could defend the statute are the elected public

officials. The whole point -- you know this better than

I do, because you're from California -- the whole point

of the initiative process was to allow the people to

circumvent public officials about whom they were

suspicious.

 

So if you reject that proposition, what is

 

 

32

 

 

 

 

 

left is the proposition that the State -- State law can

choose some other person, some other group to defend the

constitutionality of a State law. And the California

Supreme Court has told us that the Plaintiffs in this

case are precisely those people.

 

So how do you get around that?

 

MR. OLSON: The only -- that's exactly what

the California Supreme Court thought. The California

Supreme Court thought that it could decide that the

proponents, whoever they were, and this could be

25 years after the election it could be one of the

proponents, it could be four of the proponents they

could have an interest other than the State because they

have no fiduciary responsibility to the State they may

be incurring attorneys' fees on behalf of the State or

on behalf of themselves, but they haven't been

appointed they have no official responsibility to the

State.

 

And my only argument, and I know it's a

close one, because California thinks that this is the

system. The California Supreme Court thought that this

was a system that would be a default system. I'm

suggesting from your decisions with respect to Article

III that that takes more than that under -

 

 

JUSTICE SOTOMAYOR: Mr. Olson, I think that

 

 

33

 

 

 

 

 

you're not answering the fundamental fear. And so -and

-- and the amici brief that sets forth this test of

fiduciary duty doesn't quite either.

 

The assumption is that there are not

executive officials who want to defend the law. They

don't like it. No one's going to do that. So how do

you get the law defended in that situation?

 

MR. OLSON: I don't have an answer to that

question unless there's an appointment process either

built into the system where it's an officer of

California or -

 

 

JUSTICE SOTOMAYOR: So why -- why isn't this

viewed as an appointment process, that the in -- the

ballot initiators have now become that body?

 

MR. OLSON: And that's the argument -

 

 

JUSTICE SOTOMAYOR: Is that your argument -

 

 

MR. OLSON: That's our -- that's the

argument our opponents make. But it -- but it must be

said that it happens all of the time, that Federal

officials and State officials decide not to enforce a

statute, to enforce a statute in certain ways. We don't

then come in and decide that there's someone else ought

to be in court for every particular -

 

 

JUSTICE BREYER: What the brief says is, of

course, you can appoint people. It's not just that you

 

 

34

 

 

 

 

 

appoint them, it's that the State's interest, when it

defends a law, is the interest in executing the law of

the State. So all you have to do is give a person that

interest. But when a person has the interest of

defending this law, as opposed to defending the law of

the State of California, there can be all kinds of

conflicts, all kinds of situations.

 

That's what I got out of the brief. So give

the person that interest. And that, they say, is what's

missing here. And you'll say -- I mean, that's -that's

here, and you say it's missing here.

 

MR. OLSON: Yeah, I don't -

 

 

JUSTICE BREYER: Why is it missing here?

 

MR. OLSON: It is -- what is missing here,

because you're not an officer of the State of

California, you don't have a fiduciary duty to the State

of California, you're not bound by the ethical standards

of an officer of the State of California to represent

the State of California, you could have conflicts of

interest. And as I said, you'd be -- could be incurring

enormous legal fees on behalf of the State when the

State hasn't decided to go that route. I think -

 

 

CHIEF JUSTICE ROBERTS: You should feel free

to move on to the merits.

 

MR. OLSON: Thank you, Your Honor. As I

 

 

35

 

 

 

 

 

pointed out at the -- at the outset, this is a measure

that walls off the institution of marriage, which is not

society's right. It's an inpidual 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.

 

In the cases in which you've described the

right to get married under the Constitution, you've

described it as marriage, procreation, family, other

things like that. So the procreation aspect, the

responsibility or ability or interest in procreation is

not a part of the right to get married. Now, that -

 

 

CHIEF 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

 

 

36

 

 

 

 

 

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.

 

MR. OLSON: Well, there's a couple of

answers to that, it seems to me, Mr. Chief Justice. In

this case, that decision to exclude gays and lesbians

was made by the State of California.

 

CHIEF JUSTICE ROBERTS: Oh, that's only

because Proposition 8 came 140 days after the California

Supreme Court issued its decision.

 

MR. OLSON: That's right.

 

CHIEF JUSTICE ROBERTS: And don't you think

it's more reasonable to view it as a change by the

California Supreme Court of this institution that's been

around since time immemorial?

 

MR. OLSON: The California Supreme Court,

like this Supreme Court, decides what the law is. The

California Supreme Court decided that the Equal

Protection and Due Process Clauses of that California

Constitution did not permit excluding gays and lesbians

from the right to get married -

 

 

JUSTICE SCALIA: You -- you've led me right

into a question I was going to ask. The California

Supreme Court decides what the law is. That's what we

 

 

37

 

 

 

 

 

decide, right? We don't prescribe law for the future.

We -- 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?

 

MR. OLSON: When -- 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.

 

JUSTICE 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.)

 

JUSTICE SCALIA: When do you think it became

unconstitutional? Has it always been unconstitutional?

 

MR. OLSON: When the -- 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 -

 

 

 

38

 

 

 

 

 

JUSTICE SCALIA: That -- that's not when it

became unconstitutional. That's when they acted in an

unconstitutional matter -- in an unconstitutional

matter. When did it become unconstitutional to prohibit

gays from marrying?

 

MR. OLSON: That -- they did not assign a

date to it, Justice Scalia, as you know. What the court

decided was the case that came before it -

 

 

JUSTICE SCALIA: I'm not talking about the

California Supreme Court. I'm talking about your

argument. You say it is now unconstitutional.

 

MR. OLSON: Yes.

 

JUSTICE SCALIA: Was it always

unconstitutional?

 

MR. OLSON: It was constitutional when we -as

a culture determined that sexual orientation is a

characteristic of inpiduals that they cannot control,

and that that -

 

 

JUSTICE SCALIA: I see. When did that

happen? When did that happen?

 

MR. OLSON: There's no specific date in

time. This is an evolutionary cycle.

 

JUSTICE SCALIA: Well, how am I supposed to

know how to decide a case, then -

 

 

MR. OLSON: Because the case that's before

 

 

39

 

 

 

 

 

you -

 

 

JUSTICE SCALIA: -- if you can't give me a

date when the Constitution changes?

 

MR. OLSON: -- in -- the case that's before

you today, California decided -- the citizens of

California decided, after the California Supreme Court

decided that inpiduals had a right to get married

irrespective of their sexual orientation in California,

and then the Californians decided in Proposition 8, wait

a minute, we don't want those people to be able to get

married.

 

CHIEF JUSTICE ROBERTS: So -- so your

case -- your case would be different if Proposition 8

was enacted into law prior to the California Supreme

Court decision?

 

MR. OLSON: I would make -- I would make

the -- also would make the -- that distinguishes it in

one respect. But also -- also -- I would also make the

argument, Mr. Chief Justice, that we are -- this -marriage

is a fundamental right and we are making a

classification based upon a status of inpiduals, which

this Court has repeatedly decided that gays and lesbians

are defined by their status. There is no question about

that.

 

JUSTICE SCALIA: So it would be

 

 

40

 

 

 

 

 

unconstitutional even in States that did not allow

civil unions?

 

MR. OLSON: We do, we submit that. You

could write a narrower decision.

 

JUSTICE SCALIA: Okay. So I want to know

how long it has been unconstitutional in those -

 

 

MR. OLSON: I don't -- when -- it seems to

me, Justice Scalia, that -

 

 

JUSTICE SCALIA: It seems to me you ought to

be able to tell me when. Otherwise, I don't know how to

decide the case.

 

MR. OLSON: I -- I submit you've never

required that before. When you decided that -- that

inpiduals -- after having decided that separate but

equal schools were permissible, a decision by this

Court, when you decided that that was unconstitutional,

when did that become unconstitutional?

 

JUSTICE SCALIA: 50 years ago, it was okay?

 

MR. OLSON: I -- I can't answer that

question, and I don't think this Court has ever phrased

the question in that way.

 

JUSTICE SCALIA: I can't either. That's the

problem. That's exactly the problem.

 

MR. OLSON: But what I have before you now,

the case that's before you today, is whether or not

 

 

41

 

 

 

 

 

California can take a class of inpiduals based upon

their characteristics, their distinguishing

characteristics, remove from them the right of privacy,

liberty, association, spirituality, and identity that -that

marriage gives them.

 

It -- it is -- it is not an answer to say

procreation or anything of that nature, because

procreation is not a part of the right to get married.

 

JUSTICE KENNEDY: That's really -- that's a

broad argument that you -- that's in this case if the

Court wants to reach it. The rationale of the Ninth

Circuit was much more narrow. It basically said that

California, which has been more generous, more open to

protecting same-sex couples than almost any State in the

Union, just didn't go far enough, and it's being

penalized for not going far enough.

 

That's a very odd rationale on which to

sustain this opinion.

 

MR. OLSON: This Court has always looked

into the context. In, for example, the New Orleans case

involving the gambling casinos and advertising, you look

at the context of what was permitted, what was not

permitted, and does that rationalization for prohibiting

in that case the advertising, in this case prohibiting

the relationship of marriage, does it make any sense in

 

 

42

 

 

 

 

 

the context of what exists?

 

JUSTICE ALITO: Seriously, Mr. Olson,

if California provides all the substantive benefits of

marriage to same-sex domestic partnerships, are you

seriously arguing that if California -- if the State -if

the case before us now were from a State that doesn't

provide any of those benefits to same-sex couples, this

case would come out differently?

 

MR. OLSON: No, I don't think it would come

out differently, because of the fundamental arguments

we're making with respect to class-based distinctions

with respect to a fundamental right. However, to the

extent that my opponent, in the context of California,

talks about child-rearing or adoptions or -- or of

rights of people to live together and that sort of

thing, those arguments can't be made on behalf of

California, because California's already made a decision

that gay and lesbian inpiduals are perfectly suitable

as parents, they're perfectly suitable to adopt, they're

raising 37,000 children in California, and the expert on

the other side specifically said and testified that they

would be better off when their parents were allowed to

get married.

 

JUSTICE ALITO: I don't think you can have

it both ways. Either this case is the same, this would

 

 

43

 

 

 

 

 

be the same if this were Utah or Oklahoma, or it's

different because it's California and California has

provided all these -

 

 

MR. OLSON: I -- I think that it's not that

we're arguing that those are inconsistent. If the

fundamental thing is that denying gays and lesbians the

right of marriage, which is fundamental under your

decisions, that is unconstitutional, if it is -- if the

State comes forth with certain arguments -- Utah might

come forth with certain justifications. California

might come forth with others. But the fact is that

California can't make the arguments about adoption or

child-rearing or people living together, because they

have already made policy decisions. So that doesn't

make them inconsistent.

 

CHIEF JUSTICE ROBERTS: So it's just

about -- it's just about the label in this case.

 

MR. OLSON: The label is -

 

 

CHIEF JUSTICE ROBERTS: Same-sex couples

have every other right, it's just about the label.

 

MR. OLSON: The label "marriage" means

something. Even our opponents -

 

 

CHIEF JUSTICE ROBERTS: Sure. If you

tell -- if you tell a child that somebody has to be

their friend, I suppose you can force the child to say,

 

 

44

 

 

 

 

 

 

this is my friend, but it changes the definition of what

it means to be a friend.

 

And that's it seems to me what the -- what

supporters of Proposition 8 are saying here. You're -all

you're interested in is the label and you insist on

changing the definition of the label.

 

MR. OLSON: It is like you were to say you

can vote, you can travel, but you may not be a citizen.

There are certain labels in this country that are very,

very critical. You could have said in the Loving case,

what -- you can't get married, but you can have an

interracial union. Everyone would know that that was

wrong, that the -- marriage has a status, recognition,

support, and you -- if you read the test, you know -

 

 

CHIEF JUSTICE ROBERTS: How do we know -how

do we know that that's the reason, or a necessary

part of the reason, that we've recognized marriage as a

fundamental right? That's -- you've emphasized that and

you've said, well, it's because of the emotional

commitment. Maybe it is the procreative aspect that

makes it a fundamental right.

 

MR. OLSON: But you have said that marriage

is a fundamental right with respect to procreation and

at the same level getting married, privacy -- you said

that in the Zablocki case, you said that in the Lawrence

 

 

45

 

 

 

 

 

case, and you said it in other cases, the Skinner case,

for example.

 

Marriage is put on a pro- -- equal footing

with procreational aspects. And your -- this Court is

the one that has said over and over again that marriage

means something to the inpidual: The privacy,

intimacy, and that it is a matter of status and

recognition in this -

 

 

JUSTICE SOTOMAYOR: Mr. Olson, the bottom

line that you're being asked -- and -- and it is one

that I'm interested in the answer: If you say that

marriage is a fundamental right, what State restrictions

could ever exist? Meaning, what State restrictions with

respect to the number of people, with respect to -- that

could get married -- the incest laws, the mother and

child, assuming that they are the age -- I can -- I can

accept that the State has probably an overbearing

interest on -- on protecting a child until they're of

age to marry, but what's left?

 

MR. OLSON: Well, you've said -- you've said

in the cases decided by this Court that the polygamy

issue, multiple marriages raises questions about

exploitation, abuse, patriarchy, issues with respect to

taxes, inheritance, child custody, it is an entirely

different thing. And if you -- if a State prohibits

 

 

46

 

 

 

 

 

polygamy, it's prohibiting conduct.

 

If it prohibits gay and lesbian citizens

from getting married, it is prohibiting their exercise

of a right based upon their status. It's selecting them

as a class, as you described in the Romer case and as

you described in the Lawrence case and in other cases,

you're picking out a group of inpiduals to deny them

the freedom that you've said is fundamental, important

and vital in this society, and it has status and

stature, as you pointed out in the VMI case. There's

a -- there's a different -

 

 

JUSTICE SOTOMAYOR: Is there any way to

decide this case in a principled manner that is limited

to California only?

 

MR. OLSON: Yes, the Ninth Circuit did that.

You can decide the standing case that limits it to the

decision of the district court here. You could decide

it as the Ninth Circuit did -

 

 

JUSTICE 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.

 

(Laughter.)

 

 

47

 

 

 

 

 

JUSTICE KENNEDY: 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.

 

MR. OLSON: Oh, the case was certainly

properly granted, Your Honor. I mean, there was a full

trial of all of these issues. There was a 12-day trial,

the judge insisted on evidence on all of these

questions. This -- this is a -

 

 

JUSTICE KENNEDY: But that's not the issue

the Ninth Circuit decided.

 

MR. OLSON: The issue -- yes, the Ninth

Circuit looked at it and decided because of your

decision on the Romer case, this Court's decision on the

Romer case, that it could b