At Tuesday’s Supreme Court proceedings on the constitutionality of Proposition 8, California’s gay marriage ban, Justice Antonin Scalia made an awkward reference to long-time Sen. Strom Thurmond of South Carolina in a hypothetical about marriage and fertility.
From the transcript:
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?
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. That’s not –we ask about people’s age all the time.
MR. COOPER: Your Honor, and even asking about age, you would have to ask if both parties are infertile. Again —
JUSTICE SCALIA: Strom Thurmond was — was not the chairman of the Senate committee when Justice Kagan was confirmed.
Listen to the clip below: