While the supreme court justices stuck largely to serious legal argument in the Proposition 8 hearings on Tuesday, one made a decidedly off-colour joke.
Antonin Scalia, one of the court's most conservative-leaning judges, made a bizarre reference to late senator Strom Thurmond's fertility.
In a discussion about whether the purpose of marriage was procreation, Justice Elana Kagan raised the question of a man and a woman over 55 seeking to get married, despite the fact that they would not be able to have children. Charles J Cooper, representing the supporters of Prop 8, agreed that the court could not constitutionally ban such marriages, but returned to the hazards of a "redefinition" of marriage.
Justice Scalia remarked wryly: "I suppose we could have a questionnaire at the marriage desk asking, 'Are you fertile?'" When Justice Kagan noted that people were frequently asked about their age by the government, Justice Scalia joked about Senator Strom Thurmond, who fathered in his 70s and served in the Senate until age 100.
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?
Justice Kagan: Well, I just asked about age. I didn't ask about anything else. We ask about people's age all the time.
Mr Cooper: That's not … your honor, and even asking about age, you would have to ask if both parties are infertile.
Justice KaganStrom Thurmond was … was not the chairman of the Senate committee when Justice Kagan was confirmed.
[Laughter]
