It's been a long time since I've posted anything purely about the law here. But it's time.
I had a busy day at work, which was a bummer, because I read tweets and facebook updates that let me know that many of my legal colleagues were totally focused on the arguments. Unfortunately, for me, it's close to the end of quarter, so I had to work 'til after 6:30.
Finally, I took the time to read the transcript of the oral arguments before the Supreme Court today and I think it makes sense to summarize some of the issues the justices raised:
Heads up to all you married opposite sex couples who don't plan to (or can't) have kids:
"JUSTICE KAGAN: 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?
MR. COOPER: I -- Your Honor, that's the essential thrust of our -- our position, yes."
" MR. COOPER: Yes, Your Honor. The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus, refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples."
Apparently, if you're like me (married and without plans to procreate), under the Prop 8 supporters arguments, the state has no more interest in protecting or recognizing your marriage than a same-sex couple one. After all, you're just an adult couple...
Think about it.
You Know, :
Mr. Cooper: If, in fact, it is true, as the people of California believe that it still is true, that the natural procreative capacity of opposite-sex couplescontinues to pose vitally important benefits and risks to society, and that's why marriage itself is theinstitution that society has always used to regulate those heterosexual, procreative -- procreative relationships.
Lest you think I'm exaggerating, I direct you to the discussion of Turner v. Safely on p. 27.
The Court -- the Court here emphasized that,among the incidents of marriage that are not destroyed by that -- at least that prison context, was the expectation of eventual consummation of the marriage and legitimation of -- of the children...
Thank goodness this looks like it'll be settled on standing grounds, because the substantive argument seems to be coming down to "But We Need To Avoid Bastards" and "Married Couples Exist Solely To Have Unprotected Sex and Produce Children."