13 key moments in the Supreme Court argument over gay marriage

Ted Olson, representing the plaintiffs in the Prop 8 case, engages in a discussion with Chief Justice Roberts over the term "marriage" as it relates to his clients.

By Erin McClam, Staff Writer, NBC News

The Supreme Court could reshape marriage in the United States with its decision on Proposition 8, the California ban on gay marriage approved by the state's voters in 2008.

Here are 13 key moments from the transcript of Tuesday's arguments before the court.

1. Charles Cooper, the lawyer defending the California ban, summarizes his case:

“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.”
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2. Justice Sonia Sotomayor asks about gays, discrimination and marriage.

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?”

Cooper: “Your Honor, I cannot. I do not have any — anything to offer you in that regard.”

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Supreme Court Justice Elena Kagan presses Prop 8 lawyer Charles Cooper on how same-sex marriage would harm the standing of marriages involving opposite-sex couples.

3. Justice Elena Kagan gets to the heart of the case against Proposition 8:

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?”

Cooper: “I -- Your Honor, that's the essential thrust of our —our position, yes.”

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4. Justice Antonin Scalia, apparently not satisfied with one of Cooper's answers, appears to throw him a lifeline, and Justice Ruth Bader Ginsburg jumps in to argue:

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.”

Ginsburg: “California — no, California does.”

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?”

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

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

Cooper: “Your Honor, it — 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. And — but — but, Your Honor, here's — here's the point — ”

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.”

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5. Justice Anthony Kennedy raises a question about the welfare of children of gay couples:

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?”

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.”

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6. Justice Stephen Breyer takes issue with Cooper's argument that procreation is a purpose of marriage:

Breyer: "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.”

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.”

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7. A lighthearted moment as Kagan continues the questioning on marriage and procreation. Scalia mentions the late South Carolina Sen. Strom Thurmond, who lived to 100 and fathered children as late as 73:

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?”

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.)

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.)

Cooper: “Your Honor, society's — society's interest in responsible procreation isn't just 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 — ”

Kagan: “Actually, I'm not even — ”

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.)

Scalia: “I suspect this court would hold that to be an unconstitutional invasion of privacy, don't you think?”

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.”

Cooper: “Your Honor, and even asking about age, you would have to ask if both parties are infertile. Again — ”

Scalia: “Strom Thurmond was — was not the chairman of the Senate committee when Justice Kagan was confirmed.”

(Laughter.)

Cooper: “Very few men — very few men outlive their own fertility.”

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8. Theodore Olson, arguing against Proposition 8, summarizes his case:

“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 OK.”

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9. Justice Scalia asks a question about history, and Olson answers with a question of his own:

Scalia: “I'm curious, when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the 14th 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: “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?”

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10. Chief Justice John Roberts explores the meaning of the word “marriage” — and the meaning of friendship:

Roberts: “So it's just about — it's just about the label in this case.”

Olson: “The label is — ”

Roberts: “Same-sex couples have every other right, it's just about the label.”

Olson: “The label ‘marriage’ means something. Even our opponents — ”

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, 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.”

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.”

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11. Justice Sotomayor pushes Olson on the slippery slope argument, a favorite of conservatives.

Sotomayor: If you say that marriage is a fundamental right, what state restrictions could ever exist?

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 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."

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Supreme Court Justice Anthony Kennedy questions Tuesday's Prop 8 hearing and refers to the case as "uncharted waters." Prop 8 plaintiff lawyer Ted Olson responds to Kennedy's question.

12. Kennedy worries about a decision that goes too far.

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.) 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.”

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 — ”

Kennedy: “But that's not the issue the Ninth Circuit decided.”

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 be decided on the narrower issue, but it certainly was an appropriate case to grant. And those issues that I've been describing are certainly fundamental to the case. And -- and I don't want to abuse the Court's indulgence, that what I — you suggested that this is uncharted waters. It was uncharted waters when this Court, in 1967, in the Loving decision said that interracial — prohibitions on interracial marriages, which still existed in 16 states, were unconstitutional.”

Kennedy: “It was hundreds of years old in the common law countries. This was new to the United States.”

Olson: “And — and what we have here — ”

Kennedy: “So — so that's not accurate.”

Olson: “I — I respectfully submit that we've under — we've learned to understand more about sexual orientation and what it means to individuals. I guess the — the language that Justice Ginsburg used at the closing of the VMI case is an important thing, it resonates with me, ‘A prime part of the history of our Constitution is the story of the extension of constitutional rights to people once ignored or excluded.’”

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13. Roberts questions Solicitor General Donald Verrilli, arguing for the Obama administration against Proposition 8. The chief justice wonders about the scope of the court’s ruling:

Roberts: “I don't want to — I want you to get back to Justice Alito's other points, but is it the position of the United States that same-sex marriage is not required throughout the country?”

Verrilli: “We are not — we are not taking the position that it is required throughout the country. We think that that ought to be left open for a future adjudication in other states that don't have the situation California has.”

Laughter can be heard coming from the crowd gathered at the Supreme Court Tuesday during an exchange involving Prop 8 lawyer Charles Cooper, Justice Elena Kagan and Justice Antonin Scalia.