Jophiel wrote:
Regardless of the overall ruling in Windsor, Kennedy pretty clearly expressed during the arguments that the "marriage is for procreation" argument didn't hold much weight with him.
Huh? Maybe I'm missing something, but the word procreation doesn't appear in that document. Nor is there mention of children (at least not in the context of children from a marriage). He didn't clearly express any opinion on this at all.
He did, quite clearly, suggest skepticism at the idea of the federal government regulating marriage:
Kennedy wrote:
Well, but your statute applies also to States where the voters have decided it.
Kennedy wrote:
Well, I think -- I think it is a DOMA problem. The question is whether or not the Federal government, under our federalism scheme, has the authority to regulate marriage.
Kennedy wrote:
You think Congress can use its powers to supercede the traditional authority and prerogative of the States to regulate marriage in all respects? Congress could have a uniform definition of marriage that includes age, consanguinity, et cetera, et cetera?
In all three cases, he's questioning whether the federal government has the authority to regulate marriage in the form of DOMA. It would be strange to make this argument in Windsor, and basically turn around and say the opposite now. Again, I'm not precluding the possibility that he's just operating on a "pro-SSM". position. But that's basically the only way a Justice could rule that a federal law regulating what state marriages were "valid" was unconstitutional in one case, but then argue that state laws themselves can't be constitutional unless they meet some really kinda arbitrary requirement that a handful of judges think is needed.
In fact, for those who have read the arguments in this case, he basically said just that:
Kennedy wrote:
This definition has been with us for millennia. And it it's very difficult for the Court to say, oh, well, we ÂÂ we know better.
Quote:
Not in a special context but simply that he didn't buy the statement that marriage is about procreation. He expressed similar misgivings this time around as well. Since that's the main point the case against SSM hinges on, there's good reason to expect a ruling in favor of SSM. I wouldn't bet my house on it or anything but I'll be fairly surprised if it goes against (neither A nor B).
You're correct that he expressed misgivings this time around, but I'm not sure if those outweigh his earlier questions regarding the question of whether we're really talking about a fundamental right in the first place. Also, he didn't really reject the argument that gay couples not being able to procreate wasn't relevant, but whether there was some dignity placed on a relationship by the mere act of being called "marriage" and that by denying that, it might therefore denigrate same sex couples. He got a pretty decent response to that question and didn't ask any further, so there's no real way to know if he bought the answer or just rejected it completely.
I'll point out again that while Kennedy does like to play the spoiler on social issues, he's still basically a conservative in the sense of how he views government power. In Windsor he was ruling *against* the federal government defining marriage, arguing that it was the states right to do that. To rule in favor of SSM in this case, he would be countering that position by basically saying that the federal government, this time in the form of a handful of judges, knows better than and has more authority than the states when it comes to marriage. Something he clearly seemed uncomfortable with in the arguments.
I'm just not sure if his "dignity" question is sufficient by itself to make the ruling. He'd need to find some fundamental right, and "feeling better about yourself if you quality for something" usually doesn't count as such. Again though, Kennedy.
Edited, Apr 29th 2015 6:56pm by gbaji