Short Review of Oral Arguments in Hollingsworth v. Perry

Yesterday the Supreme Court heard arguments for and against California's Proposition 8 in the case of Hollingsworth v. Perry. One thing I found amusing, was Justice Elena Kegan's use of the well worn liberal argument that if we do not exclude infertile heterosexual couples from marriage then why should we exclude same-sex couples on the basis of infertility. Let's look at this closer. First, infertile heterosexual couples are the exception, not the rule. Justice Kegan asked the plaintiff in favour of Proposition 8 if we should not allow marriages between people of 55 years or older because, according to her, they are infertile. The spectators naïvely laughed when Hollingsworth said that it's rare that even in that case both parties would be infertile, because most men are fertile their entire lives. Also, I believe Justice Kegan's comment about pro-creation being impossible in a couple 55 years of age or older is a bit uninformed. I would rate it on the same level of faux pas as Barack Obama's "bayonet" comment during the Presidential Debates. There are reports going back hundreds of years of women giving birth well over the age off 55, and into their early seventies. So, there is a very small number of older couples who remain fertile, but there are absolutely no same-sex couples who are capable of pro-creating by themselves.
During the proceedings, Solicitor General Donald B. Verrilli summarily said during his presentation of the amicus curiae, that California did not have the right to deny same-sex couples the right to marry because it already gives them many other rights, such as adoption and domestic partnership. I don't know, but if I were a state politician, to me that would sound like a reason to not give same-sex couples any more rights than they already have, because if you do, you'll have same-sex "marriage" forced upon you.
Not surprisingly, the respondents brought up the case of Loving v. Virginia. I have already talked about how same-sex couples and interracial couples are not comparable, but the Justices raised some other important points about that difference. Justice Kennedy, referring to interracial marriage when it was compared to same-sex "marriage" by the respondents, said:
"It was hundreds of years old in the common law countries. This was new to the United States."
It had already been mentioned by Justice Alito earlier that same-sex "marriage" has only been around for, at most, 13 years.
I believe what Justice Kennedy was alluding to is the fact that interracial marriage had already been present in many parts of the world hundreds of years before Loving v. Virginia. There is no comparable history with same-sex "marriages."