Supreme Court Justice Anthony Kennedy asked Cooper if marriage could be considered a "gender-based classification."
Cooper replied, "Virtually every appellate court, state and federal, with one exception, Hawaii, in a superseded opinion, has agreed that it is not a gender-based classification, but I guess it is gender-based in the sense that marriage itself is a gendered institution, a gendered term, and so in the same way that fatherhood is gendered more motherhood is gendered, it's gendered in that sense.
"But we -- we agree that to the extent that the classification impacts, as it clearly does, same-sex
couples, that -- that classification can be viewed as being one of sexual orientation rather than -¬"
Justice Sonya Sotomayor jumped in then.
"Outside of the -¬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?" she asked. "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?"
"Your Honor, I cannot. I do not have any -- anything to offer you in that regard," Cooper said.
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