Of Procreation and Labels: Supreme Court Hears Prop. 8 Challenge

California's Proposition 8 recognizing only marriage between a man and a woman had its morning before the highest court in the land today, with arguments centering around procreation and the label of marriage.

Protesters on both sides of the issue marched, prayed, danced and rallied in front of the Supreme Court. With Congress in recess, reporters badgered senators in their districts to get their current stances on same-sex marriage. The White House, still trumpeting its surprise ObamaCare victory here in June, tried to be quietly engaged, putting Valerie Jarrett in the courtroom but otherwise offering little prognostication.

And two lawyers who found themselves on opposing sides here more than a dozen years ago in Bush v. Gore joined forces today to argue that gay couples should have the right to marry in the Golden State.

"I think the most remarkable thing that happened in there was that there was no attempt to defend the ban on gay and lesbian marriage. There was no indication of any harm," attorney David Boies, who represented Al Gore in the 2000 election fight, said after today's oral arguments. "All that was said in there was that this important constitutional right ought to be decided at the state level as opposed to the federal government, but it is a federal Constitution that we have, and it is a federal Constitution that guarantees fundamental rights to every citizen in every state."

Based upon the questions that the justices asked, "I have no idea" how the justices will rule, said Ted Olson, former solicitor general under President George W. Bush.

"The court has several ways to decide this case, from a very broad, sweeping conclusion with respect to the rights of our citizens in this country to a narrower ruling that would be limited basically to California. The court never gives you an idea how they're going to decide it. They didn't today," Olson said. "They've obviously read the briefs. They care about the issues. And then we'll see what the court decides."

Andrew Pugno, general counsel for ProtectMarriage.com, said he expected to see "a very reasoned decision come out of this court."

"Our position all along has been that the political process -- that means state by state, states deciding for themselves -- that that's the forum where this debate belongs, and that this is not something that should be imposed by the judiciary -- by the courts," Pugno said. "And so a victory here for us means that this issue returns to the people and their legislatures and their elected representatives where the debate belongs."

"We feel very confident about the standing question and are hopeful that the Supreme Court again will uphold the people's right to defend and protect marriage in their state laws," said Austin Nimocks, senior counsel for the Alliance Defending Freedom.

Prop. 8 passed in 2008 with 52 percent support. Since then, the measure has worked its way up the courts. The Ninth Circuit Court of Appeals found the proposition to be unconstitutional.

Inside the court, Justice Anthony Kennedy asked Charles Cooper, lead counsel for ProtectMarriage.com, if the same-sex marriage controversy can be treated "as a gender-based classification."

"It's a difficult question that I've been trying to wrestle with," Kennedy added.

"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 or motherhood is gendered, it's gendered in that sense," Cooper responded. "We agree that to the extent that the classification impacts, as it clearly does, same-sex couples, that that classification can be viewed as being one of sexual orientation."

"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?" Justice Sonia Sotomayor asked. "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?"

"Your honor, I cannot," Cooper replied. "…We are saying the interest in marriage and the state's interest and society's interest in what we have framed as responsible procreation 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."

"In reading the briefs, it seems as though your principal argument is that same-sex and 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?" asked Justice Elena Kagan.

"That's the essential thrust of our position, yes," said Cooper.

"I don't know why you don't mention some concrete things," Justice Antonin Scalia admonished the lawyer. "If you redefine marriage to include same-sex couples, you must -- you must permit adoption by same-sex couples, and there's considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not. …I don't think we know the answer to that. Do you know the answer to that -- whether it harms or helps the child?"

"No, your honor," Cooper said.

Scalia noted "I take no position on whether it's harmful or not, but it is certainly true that there's no scientific answer to that question at this point in time."

"And that, your honor, is the point I am trying to make. And it is the respondent's 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," stated Cooper.

Kennedy said "there is an immediate legal injury or legal -- what could be a legal injury" against 40,000 children in California living with same-sex parents who "want their parents to have full recognition and full status."

Justices grilled Cooper on his contention that "redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes" with questions about how he viewed marriage for sterile or senior straight couples.

"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 said before laughter broke out.

"No, really, because if a 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," Kagan said.

"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 --" Cooper said before Scalia quipped, "I suppose we could have a questionnaire at the marriage desk when people come in to get their marriage -- you know, 'Are you fertile or are you not fertile?'"