"As long as we are not chased from our words we have nothing to fear. As long as our utterances keep their sound we have a voice. As long as our words keep their sense we have a soul." -- Edmond Jabes, from The Book of Yukel, Return to the Book

Tuesday, March 26, 2013

Scalia weighs in, but it's up to Roberts and Kennedy

With Supreme Court proceedings closed to cameras, we are left to divine the direction the court might take from reports from the handful of reporters covering today's arguments. Here is one particularly illuminating -- if likely irrelevant -- snippet from the proceedings, brought to us by Talking Points Memo:
Scalia jumped in to make his point when liberal justices were grilling Charles Cooper, the lawyer arguing in favor of Prop 8, California’s ban on gay marriage, about what harm it would cause opposite-sex couples.

“If you redefine marriage to include same-sex couples,” he said, “you must permit adoption by same-sex couples, and there’s considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not. Some states do not permit adoption by same-sex couples for that reason.”

“I don’t think we know the answer to that,” he said. “Do you know the answer to that, whether it harms or helps the child? … That’s a possible deleterious effect, isn’t it?”
Forget for a minute that the research is pretty conclusive -- the American Psychological Association issued a statement eight years ago that said that "research has shown that the adjustment, development, and psychological well-being of children is unrelated to parental sexual orientation and that the children of lesbian and gay parents are as likely as those of heterosexual parents to flourish." 

And forget, as well, that Scalia is really offering nothing more than a kinder, friendlier version of the "slippery slope" argument usually offered by opponents of same-sex marriage (at least he didn't say that legalizing same-sex marriage would lead to bigamy, polygamy and bestiality).

And forget that Scalia may be the least intellectual intellectual in American life, a man so beset by his own prejudices that he is unwilling to examine any of the assumptions that underlie his arguments.

What is important here is that what Scalia says may not matter. We know how he is going to vote. We know what his reasoning is going to be and we know that Clarence Thomas and Samuel Alito are going to join him.

What is less clear is where Chief Justice John Roberts and Justice Anthony Kennedy will side. Kennedy is considered the swing vote, but there has been some speculation that Roberts is concerned about the court's legacy and, if that is the case, it makes him a wild card.

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