Justice Antonin Scalia saw a moment to display that famous(?) sense of humor when pro-Prop 8 attorney Chris Cooper argued that procreation lay at the heart of the gay marriage debate.
Justice Elena Kagan asked Cooper about a heterosexual couple over 55 years of age seeking to get married, even though they technically wouldn’t be able to have children.
Cooper agreed that the court could not constitutionally ban such marriages, before Scalia heard the faint sounds of a rimshot in the not-too-distant future:
Scalia: “I suppose we could have a questionnaire at the marriage desk when people come in asking, ‘Are you fertile or are you not fertile?’
[Laughter]
Scalia: “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 ages all the time.”
Cooper: “Your honor, and even asking about age, you would have to ask if both parties are infertile.”
Scalia: “Strom Thurmond was not the chairman of the Senate committee when Justice Kagan was confirmed.”
[Laughter]
Thurmond famously sired multiple children when most people can barely remember what sex is before drying up and dying at the tender age of 100.
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(h/t: New York Mag)
