Jacob from Equality on Trial was in the courtroom for the hearing. His thoughts:
On to the merits! Charles Cooper had two central points: in the first, he put significant emphasis on the fact that there is an “earnest debate” happening across the country on marriage equality. Cooper asked early on, rhetorically, if the Supreme Court should stop that debate, saying that it could only do so it if found that Prop 8 was entirely based on animus.
Cooper’s second point, of course, was his usual ‘responsible procreation’ argument. Same-sex couples, Cooper contends, are not ‘similarly situated’ (a central component to equal protection consideration) to opposite-sex couples because only opposite-sex couples can procreate naturally. Justice Kagan pointed out that Cooper had made an argument for not including same-sex couples in the institution of marriage (because marriages between same-sex couples does not explicitly further the state’s interest in responsible procreation), but asked whether he could justify a law that excludes them from the institution.
Kagan told Cooper she couldn’t find in his legal briefs any specific harms that would result from allowing same-sex couples to marry. Cooper said that this notion of specific harms is not the central legal issue in the case, circling back to his earlier argument that restricting marriage to opposite-sex couples is justifiable because it furthers a state’s interest in responsible procreation.
See the whole thing at the link above.