JUSTICE BREYER:Assume that you could distinguish California. Assue that we accept your argument -- or Mr. Scalia's version of your argument. And that distinguishes California. Now, let's look at California: what precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as the procreation of children, that allowing sterile couples of different sexes to marry would not? I mean, there are lots of people who get married that can't have children. So take a state that does allow adoption and say, there -- what's the justification for saying "no gay marriage"? Certainly not the one you said, is it?
COOPER:Uh, y-y-y-you --
BREYER (interjecting):Am I not clear? Look: you said that the problem is marriage, as an institution that furthers procreation --
COOPER:Yes, Your Honor.
BREYER:And the reason there was adoption. But that doesn't apply to California. So imagine I wall off California, and I'm looking just there, where you say that doesn't apply. Now, what happens to your argument -- about the institution of marriage as a tool towards procreation? Given the fact that in California too, couples that aren't gay but can't have children get married all the time?
COOPER:Yes, Your Honor. The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic, traditional procreative purposes. And it will re-focus, re-focus the purpose of marriage a-and the definition of marriage away from the, uh, uh, raising of children and to the emotional needs and desires of adults, of adult couples.
KAGAN:Well, suppose a State said, "Because we think that the focus of marriage really should be on procreation, we're not going to give marriage licenses any more 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're over the age of 55, you don't help us serve the government's interest in protecting procreation through marriage. So why is that different?
COOPER:You, you, Your Honor, even with respect to couples over the age of 55, it is very rare that both couples -- both parties to the couple -- are infertile.
(Laughter from the gallery.)
KAGAN (interjecting):No really, because 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.
“I am…not an advocate for frequent changes in laws and Constitutions….But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”—
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