Justice Kagan's 55+ Curveball


The surprise entrance of an older couple caused quite a stir at the U.S. Supreme Court's first day of arguments about same-sex marriage. Justice Elena Kagan summoned the pair from her imagination, and it seems safe to say that Charles J. Cooper, the lawyer representing proponents of limiting marriage, never saw them coming.

Here's how Kagan described them: They're both over 55 years old, apparently heterosexual and they want to get married. Oh, and she's past her childbearing years, though he probably isn't.

Kagan conjured the couple as the justices probed Cooper's argument that "redefining marriage as a genderless institution" would undermine its foundation for having children and shift the emphasis to the needs of adults.

You can listen to their exchange here or read how it went below (with the transcript edited to eliminate some repetition and cross talk):

COOPER: 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 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.

JUSTICE KAGAN: Well, Mr. Cooper, 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?

COOPER: No, Your Honor, it would not be constitutional.

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 parties to the couple are infertile, and -

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.


COOPER: Your Honor, 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 -

JUSTICE ANTONIN SCALIA: I suppose we could have a questionnaire at the marriage desk when people come in to get the marriage [license], you know - Are you fertile or are you not fertile?


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. 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 not the chairman of the Senate committee when Justice Kagan was confirmed. [ Note: The Republican Senator from South Carolina was known on Capitol Hill as "Sperm Thurmond" for having fathered the first of four children with his beauty-queen wife when he was nearly 70.)


COOPER: Very few men outlive their own fertility. So I just -

KAGAN: A couple where both people are over the age of 55 -

COOPER: And Your Honor, again, the marital norm which imposes upon that couple the obligation of fidelity -

JUSTICE SONIA SOTOMAYOR: I'm sorry, where is this -

CHIEF JUSTICE JOHN ROBERTS: I'm sorry; maybe you can finish your answer to Justice Kagan.

SOTOMAYOR: I'm sorry.

COOPER: It's designed, Your Honor, to make it less likely that either party to that marriage will engage in irresponsible procreative conduct outside of that marriage. That's the marital norm. Society has an interest in seeing a 55-year-old couple that is - just as it has an interest of seeing any heterosexual couple that intends to engage in a prolonged period of cohabitation, to reserve that until they have made a marital commitment. So that, should that union produce any offspring, it would be more likely that that child or children will be raised by the mother and father who brought them into the world.


Photo: Steve Petteway/Collection of the Supreme Court of the United States


Also of Interest

The Supreme Court and Same-Sex Marriage: What's at Stake for Older Gay Couples

Finding Strength to Leave a Relationship: Dr. Pepper Schwartz, AARP Sex & Relationships Expert

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