is that it does not qualify under this court's standard and traditional tests for identifying suspectednessass itself is quite amorphous. it defies consistent definition as -- as the plaintiffs' own experts were -- were quite vivid on. it does not -- it does not qualify as an accident of birth, immutability in that -- in that sense. again, the plaintiffs -- >> so you -- so what -- i don't quite understand it. if you're not dealing with this as a class question, then why would you say that the government is not free to discriminate against them? >> well, your honor, i would think that -- i think it's a -- it's a very different question whether or not the government can proceed arbitrarily and irrationally with respect to any group of people, regardless of whether or not they qualify under this court's traditional test for suspectedness. and the hypothetical i understood you to be offering, i would submit would create -- it would -- unless there's something that is not occurring to me immediately, an arbitrary and capricious distinction among similarly situated individuals, that is not what w

is that it does not qualify under this court's standard and traditional tests for identifying suspectedness. quiteass itself is amorphous. it defies consistent definition as -- as the plaintiffs' own experts were -- were quite vivid on. it does not -- it does not qualify as an accident of birth, immutability in that -- in that sense. again, the plaintiffs -- >> so you -- so what -- i don't quite understand it. if you're not dealing with this as a class question, then why would you say that the government is not free to discriminate against them? >> well, your honor, i would think that -- i think it's a -- it's a very different question whether or not the government can proceed arbitrarily and irrationally with respect to any group of people, regardless of whether or not they qualify under this court's traditional test for suspectedness. and the hypothetical i understood you to be offering, i would submit would create -- it would -- unless there's something that is not occurring to me immediately, an arbitrary and capricious distinction among similarly situated individuals, that is not what

is that it does not qualify under this court's standard and traditional tests for identifying suspectedness. the class itself is quite amorphous. it defies consistent definition as -- as the plaintiffs' own experts were -- were quite vivid on. it does not -- it does not qualify as an accident of birth, immutability in that -- in that sense. again, the plaintiffs -- >> so you -- so what -- i don't quite understand it. if you're not dealing with this as a class question, then why would you say that the government is not free to discriminate against them? >> well, your honor, i would think that -- i think it's a -- it's a very different question whether or not the government can proceed arbitrarily and irrationally with respect to any group of people, regardless of whether or not they qualify under this court's traditional test for suspectedness. and the hypothetical i understood you to be offering, i would submit would create -- would -- unless there's something that is not occurring to me immediately, an arbitrary and capricious distinction among similarly situated individuals, that is not w

any group of people, regardless of whether thist they qualify under court's traditional test for suspectedness. and -- and the hypothetical i understood you to be offering, i would submit would create -- it would -- unless there's something that -- that is not occurring to me immediately, an arbitrary and capricious distinction among similarly situated individuals, that -- that is not what we think is at the -- at the root of the traditional definition of marriage. >> mr. cooper, could i just understand your argument. in reading the briefs, it seems as though your principal argument is that same-sex and opposite -- opposite-sex couples are not similarly situated because opposite-sex couples can procreate, same-sex couples cannot, and the state's principal interest in marriage is in regulating procreation. is that basically correct? >> i -- your honor, that's the essential thrust of our -- our position, yes. >> is -- is there -- so you have sort of a reason for not including same-sex couples. is there any reason that you have for excluding them? saying, words, you're well, if we allow same-sex