An elementary student from a 'few years back' read a post of Prop 8. I cautioned how it's not a great idea to read too much into the justices' questions...
PROP 8: 3/26/2013
JUSTICE SOTOMAYOR: 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 rational decision-making that the government could make? Denying them a job, not granting them benefits of some sort, any other decision?"
MR. COOPER: Your Honor, I cannot.
The analytical action here (putting aside the standing question, which is everyone's easy way out) all comes in determining the level of scrutiny to apply to the law's distinction between straight and gay people here. Race and gender distinctions/discriminations are subject to heightened levels of constitutional scrutiny -- government has to have a much more compelling basis to make those distinctions or, put another way, the law almost presumes they're not valid until a government demonstrates a really valid, non-discriminatory reason for it.
Outside of those obvious categories, though, laws are presumed valid and will be upheld against constitutional challenge so long as there's a rational basis for the distinction the law makes. So if, for example, Congress were to require people with red hair to wear sunscreen, it would only have to articulate a reasonable basis (medical studies have proven that people with red hair tend to burn and get skin cancer more than others, so it's rational to require that of them, and the distinction isn't based on a historic animus toward red-haired people), and it would survive a constitutional challenge. That doesn't make it a good idea or good policy, but the rational basis bar is a really low one that all sorts of stupid and ill-conceived laws can pass. After all, there's no constitutional requirement that Congress enact only laws that are smart or make sense. Would that that were true.
Anyway, the reason this exchange is so great is that Justice Sotomayor is making the case here for why Prop 8 flunks even this really deferential standard of review. By pinning Mr. Cooper down on the fact that there's no rational basis for discriminating against gay people except on marriage, she's boxed him into an analytical corner and his answer, which strikes me as intellectually honest, concedes that he can't get out. Will that make a difference for Justice Scalia? Not a chance. But it's not aimed at him -- it's aimed at Justice Kennedy and Chief Justice Roberts, whose votes are in play, at least as to the scope and analytical path of the eventual decisions. And it's a brilliant question, EXACTLY the sort of question judges should be asking in a case like this.
I hope this helps. Stay strong and loud.
Really great to know that I had a small part in the education of someone so ... well ... groovy!