Supreme Court Watch

One striking aspect to me is how opponents of SSM has reduced marriage as seen by this back/forth with Kagan/Cooper yesterday: 

Kagan: 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

Meanwhile, Ted Olson noted Prop 8 removes:

the right of privacy, liberty, association, spirituality, and identity that -­ that marriage gives them

In return, again why is this so hard?, CJ Roberts wonders how this is clear, how do we not know that procreation is what makes marriage a fundamental right?  Because the ability to procreate is not and never was a grounds to not being able to marry (in a few states, age requirements for close relatives, like cousins, in fact go the other way) and marriage is fully honored and special even when procreation is not involved?

As a child, and this doesn't make me special or anything, my grandmother re-married after my grandfather died (before my time).  My grandmother was past menopause. Procreating wasn't why she married or was given a marriage license.  It is simply inane to focus so much on procreation. Even old cases like Meyer v. Nebraska citing raising a family, not just procreation, since even then that sort of thing took place too.

Oh well. Two opinions handed down before the DOMA cases were heard, one unanimous, another a class action matter split 5-4 with Justice Ginsburg and Breyer writing a joint dissent (curious) joined by Sotomayor and Kagan (not joined in a judicial union).  The dissent in part argued that the majority reached out to decide a question.  I'm inclined to believe Ginsburg over Scalia, though have not tried to delve into the merits, but this underlines that a degree of choice is involved in these things.

Before listening or reading about the DOMA arguments, quick looks at Twitter and such suggested Scalia and Roberts were annoyed at how the Obama Administration handled this case. The path taken is not new and we see here that refusing to defend was done by both political persuasions, at least one case involving one John Roberts. Sure there was something different there or something. Noises are that Kennedy is sympathetic to the federalism argument here, good chance DOMA falls.

I'll take it.