Supreme Court Justice Sonia Sotomayor left the lawyer defending California’s Proposition 8 grasping for words Tuesday with a question about whether the state law banning gay marriage amounts to discrimination.
Outside of the marriage context, can you think of any other rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits? Or imposing burdens on them? Is there any other decision-making that the government could make -- denying them a job, not granting them benefits of some sort, any other decision?
Charles Cooper, the attorney arguing against gay marriage for the state of California, struggled to find a response.
“Your Honor, I cannot,” Cooper said. “I, I do not have, uh, uh, any, uh, anything to offer you in that regard.”
“If they’re a class that makes any other discrimination improper, irrational, then why aren’t we treating them as a class for this one benefit?” Sotomayor then asked.
Cooper answered that marriage needed to be protected because of “responsible procreation” is a “vital” interest to the state and society and because “same-sex couples and opposite-sex couples are simply not similarly situated.”
Observers view Sotomayor as one of the more liberal of the Court’s nine justices. Though she hadn’t ruled on civil union or same-sex marriage cases before rising to the Supreme Court in 2009, her questioning indicated that she is critical of barring gay and lesbian couples from marrying.
The Court considered the question of gay marriage again on Wednesday, hearing oral arguments on the constitutionality of the Defense of Marriage Act.
Listen to the back-and-forth between Sotomayor and Cooper in the video above.