THE COURT: All right. Let me throw in a question here. Assume I agree with you that the state's interest in marriage is essentially procreative, as you've put it.
MR. COOPER: Yes, your Honor.
THE COURT: Assume that I agree with that. How does permitting same-sex marriages impair or adversely affect that interest?
MR. COOPER: Obviously, my submission here to you is rational-basis standard applies. And so, yes, my here are premised upon –
THE COURT: I've given you one assumption. Give me one, for purposes of argument. And that is that this is not rational basis review; this is intermediate scrutiny.
MR. COOPER: Well, then, your Honor, I'm going to be coming back to you with arguments.
THE COURT: Now we're having a dialogue here. Now assume that you have to have established that this is the minimally effective means of imposing this discrimination between same-sex marriages and opposite-sex marriages. So what is the harm to the procreative purpose or function of marriage that you outline of permitting same-sex marriages?
MR. COOPER: Your Honor, even under a compelling-state-interest standard, I would submit to the Court that the state's interests in channeling procreative activity into enduring relationships would be vital, and would satisfy a compelling-interest standard. And I would also submit to the Court that there would be no reasonable available way for — for that purpose to be fulfilled and advanced, other than the way the state has chosen — every state has chosen, with five exceptions, and California has chosen through Proposition 8. And, your Honor, that gets to the — to the fundamental, I think, theoretical disagreement that I mentioned earlier between the Plaintiffs and the Defendant-Intervenors here. They say that it's not enough, as you were suggesting here, for opposite-sex unions to further and advance these vital state interests; that we have to prove, in addition to that, that including same-sex unions into the definition of marriage would actually harm those purposes and interests. That is not the Equal Protection construct, your Honor.
THE COURT: I'm asking you to tell me how it would harm opposite-sex marriages.
MR COOPER: All right.
COURT: All right. Let's play on the same playing field for once. Okay.
MR COOPER: Your Honor, my answer is: I don't know.