Chief Justice and ex-Dread Pirate Roberts, for his part, started off the day with some keen insights as to how the Court could possibly weasel out of deciding anything at all, interrupting the first sentences of the anti-marriage-equality side as soon as they had begun:
Mr. Cooper, we have jurisdictional and merits issues here. Maybe it'd be best if you could begin with the standing issue.Translation: Sweet Jesus, please don't make us decide this one. I am too old and I have too nice a house to deal with this crap right now. Why did we agree to this, anyway? Scalia? It was you, wasn't it? Then there's about 10 pages of that discussion.
Read what the other justices had to say below the fold.
Scalia, on the other hand, wanted to get right down to the real issue at hand: Talking about things he once heard Rush Limbaugh say:
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.He then went on to say that this case was going to decide whether or not gay marriage was to be recognized in all the other states, which was news to everybody else in the room, and while nobody was buying it, it did lead to a long argument as to whether or not old people should get married because heaven knows they're not going to be procreating, and somebody brought up Strom Thurmond and everybody laughed. Scalia was also very, very keen on affixing a date to when all this non-discrimination stuff first started to apply:
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?Ah, he's such a card. Justice Alito was edgy, however; he wasn't sure this whole "gay people in committed relationships" thing wasn't just a passing fad:
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.
Traditional marriage has been around for thousands of years. Same-sex marriage is very new. I think it was first adopted in The Netherlands in 2000. So there isn't a lot of data about its effect. And it may turn out to be a -- a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe. But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet? I mean we -- we are not -- we do not have the ability to see the future.That seemed to be a trend—the thought that maybe the Court really needs to punt on this whole thing and wait for unspecified magic to happen later, because can we really be sure gay people will even still want to get married, 10 years from now, or maybe some new scientific research will come out saying that they're abominable people after all. Official Swing Vote On Everything Kennedy seemed to be in the "do we really have to decide this now?" camp as well, so we shall we what happens.