JUSTICE SCALIA: I'm curious, when - when did -- when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes -- some time after Baker, where we said it didn't even raise a substantial Federal question? When -- when -- when did the law become this?
MR. OLSON: When -- may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?
JUSTICE SCALIA: It's an easy question, I think, for that one. At -- at the time that the Equal Protection Clause was adopted. That's absolutely true. But don't give me a question to my question.
And then this:
JUSTICE KENNEDY: There is an immediate legal injury or legal—what could be a legal injury, and that’s the voice of these children. There are some 40,000 children in California . . . that live with same-sex parents. They want their parents to have full recognition and full status. The voice of these children is important, don’t you think?