Justice Kagan asked a penetrating question about the ability of sterile couples to procreate.
JUSTICE KAGAN: Well, suppose a State said, Mr. Cooper, suppose a State said that, Because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that be constitutional?
Cooper replied, that its rare that couples over the age of 55 are *both* infertile. Obviously he was thinking of the fertile octogenarian from 1L Property. The Rule Against Perpetuities will do that.
JUSTICE KAGAN: No, really, because if the couple — I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage. (Laughter.)
And then Scalia leaped the shark (he jumped it a long time ago):
JUSTICE SCALIA: I suppose we could have a questionnaire at the marriage desk when people come in to get the marriage — you know, Are you fertile or are you not fertile? (Laughter.)
JUSTICE SCALIA: I suspect this Court would hold that to be an unconstitutional invasion of privacy, don’t you think?