03/26/2013 03:52 pm ET Updated Mar 27, 2013

Antonin Scalia At Prop 8 Hearing: Justice Makes Strom Thurmond Reference

Justice Antonin Scalia made an awkward reference to former Sen. Strom Thurmond (R-S.C.) during the Supreme Court hearing on Proposition 8, California's ban on gay marriage, Tuesday, eliciting laughter from the courtroom.

The comment came during a conversation about infertility and what Charles Cooper, the lawyer arguing in support of Prop 8, called marriage's "connection to its historic traditional procreative purposes," according to the hearing's transcript.

Justice Elena Kagan posed the question of whether the government could deny the right to marry to infertile or older couples who are unlikely to produce children. Justice Scalia jumped into the conversation, interrupting Kagan's questions and referring to Thurmond out of nowhere.

New York Magazine reports:

While listening to pro–Prop 8 attorney Charles Cooper squirm is fun, the real zingers come from Justice Antonin Scalia, who said, "I suppose we could have a questionnaire at the marriage desk asking, 'Are you fertile?'" and went on to quip about Senator Strom Thurmond, who fathered multiple children between ages 68 and 73.

"Strom Thurmond was -- was not the chairman of the Senate committee when Justice Kagan was confirmed," Scalia continued, according to the transcript.

Thurmond notoriously opposed the Civil Rights Act of 1957, filibustering the bill for over 24 hours on the Senate floor.



Supreme Court Proposition 8 Case