- 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. 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 -
- GENERAL VERRILLI: Mr. Chief Justice, and may it please the Court: Proposition 8 denies gay and lesbian persons the equal protection of the laws -
- CHIEF JUSTICE ROBERTS: You don't think you're going to get away with not starting with the jurisdictional question, do you?
Not sure where Boston Review got its transcript, but the official SCOTUS transcript has this slightly different. Here it is, in full (it begins on page 38):
JUSTICE SCALIA: 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
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