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One of the odder things about reading Supreme Court oral arguments is how, well, small the discussion is. The questions being asked are questions that have been hashed out at dinner tables for years or even decades; I don't know if any more ought to be expected, but it's still odd to see Justice Scalia muttering phrases that seem to have come directly from talk radio, or to hear lawyers before the Greatest Court In The Land bringing up or knocking down strawmen that most of the rest of us thought had been dispensed with a very long time ago.
Case in point: Tuesday arguments before the Court, which centered for long periods of time around whether or not "procreation" was the be-all, end-all of marriage definitions, as the anti-marriage equality side had claimed in its briefs. Wouldn't that mean that old or infertile people shouldn't be allowed to marry? And isn't that ridiculous on its face?
“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?”
And here's how Charles Cooper, advocate for the pro-Proposition 8 side, argued his case:
"[S]ociety'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 … marriage will engage in irresponsible procreative conduct outside of that marriage. Outside of that marriage. That's the marital—that's the marital norm."
It's all about the babies, then. Or rather, discouraging "irresponsible procreative conduct" that leads to out-of-wedlock babies. You see, even if two infertile people get married, or, say, one fertile and one infertile person, the state still has a general interest in seeing the "norm" of proper babymakin' adhered to, and that means no "irresponsible procreative conduct," and that means no gays because … wait, what?
If you can make any sense of Cooper's word salad, you're a talented soul. But while the question of whether the state's interest in marriage was all about the baby-making was (yet again) hashed out, none of the justices seemed to follow up on the one thing I would have loved to see Cooper explain. If, as Cooper says, the state interest is to ensure that neither party in the marriage "will engage in irresponsible procreative conduct outside of that marriage"—how do you figure gay Americans are more likely to engage in extramarital "procreative conduct," fella? I'm going to go out on a limb here and say that the number of accidental pregnancies resulting from irresponsible gay sex is, on the Famous Accidental Pregnancies scale of things, vanishingly low. It's not known to be a big problem.
That's what's frequently so surprising about these oral arguments. You've got lawyers making arguments that have been shot down over and over again, arguments that have been dull for decades, and arguments that aren't even internally consistent from paragraph to paragraph. In this case, perhaps we should just be interpreting it as the anti-equality side simply having a harder and harder time mustering up any sensible argument at all?