In this clip, Justices Kagan, Kennedy, and Sotomayor press Proposition 8 counsel Charles Cooper on whether there is any rational basis for discriminating against gay Americans outside the marriage context. Mr. Cooper not only was unable to identify any context in which it would be rational for the government to discriminate against non-heterosexual Americans, he was also unable to define a specific harm to so-called “traditional marriage” arising from same-sex marriage. The justices’ questions point both to a fundamental weakness in the anti-equality case and to at least some interest in applying a heightened constitutional scrutiny to anti-LGBT discrimination.