In response to a pointed question from Kagan, that elicited something not in the briefs:
JUSTICE KAGAN: Is — is there — so you 20 have sort of a reason for not including same-sex 21 couples. Is there any reason that you have for 22 excluding them? In other words, you’re saying, well, if 23 we allow same-sex couples to marry, it doesn’t serve the 24 State’s interest. But do you go further and say that it 25 harms any State interest?
MR. COOPER: Your Honor, we — we go further 2 in — in the sense that it is reasonable to be very 3 concerned that redefining marriage to — as a genderless 4 institution could well lead over time to harms to that 5 institution and to the interests that society has 6 always — has — has always used that institution to 7 address. But, Your Honor, I —
JUSTICE KAGAN: Well, could you explain that 9 a little bit to me, just because I did not pick this up 10 in your briefs. 11 What harm you see happening and when and how 12 and — what — what harm to the institution of marriage 13 or to opposite-sex couples, how does this cause and 14 effect work?
MR. COOPER: Once again, I — I would 16 reiterate that we don’t believe that’s the correct legal 17 question before the Court, and that the correct question 18 is whether or not redefining marriage to include 19 same-sex couples would advance the interests of marriage 20 asa–
I am tired of the word “institution.” I don’t think it means what people thought it meant some time ago.
Cooper even says that SSM harms opposite-sex marriage couples.
JUSTICE KENNEDY: Well, then are — are you 22 conceding the point that there is no harm or denigration 23 to traditional opposite-sex marriage couples? So you’re 24 conceding that.
MR. COOPER: No, Your Honor, no. I’m not conceding that.