I'm no scholar of the high court (hell, I wasn't even a scholar of the high school) so take my analysis with a shaker of salt. And I won't tackle the argument that plaintiffs may lack standing—which is one way of avoiding the juicy stuff that everyone cares about: constitutional rights. But it seems Justice Kennedy, who looks like the swing vote on this issue, was dodging the constitutionality question of Prop 8 this morning by requesting irrelevant data: by seeking more science on same-sex couples who raise kids. As he put it on the bench (transcript), "I think there's—there's substantial—that there's substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history or more." He said same-sex marriage and parenting, which has only been around since Massachusetts legalized it in 2004, remains "uncharted waters."
But this isn't about this constitutional rights of children. It's about the constitutional rights of adults.
More after the jump.
Furthermore, same-sex parenting—whether or not those parents have a marriage certificate—is thoroughly charted waters. (See: The brief filed by the American Psychological Association, The California Psychological Association, The American Psychiatric Association, and the American Association for Marriage and Family Therapy which found that gay parents are just as fit, capable, and healthy parents as straight people.) Kennedy's argument just isn't a real argument.
But let's say it is about the kids, let's buy into the argument raised by NOM and Prop 8 supporters that kids require a mother and a father. Even though they acknowledged that some straight couples have zero children and even though some kids are born to single parents, we shouldn't deliberately create child-rearing households that lacks both genders at the helm. This requires buying into the argument that same-sex marriage spontaneously produces children.
Wait a second... we can't buy into that argument.
Because two daddies can fuck and fuck and fuck all day trying to make a baby—we try so hard at the fucking—but no babies come out. Same with two mommies. Marriage doesn't create children: Straight people fucking creates children. Yes, I know, gay people can use in vitro fertilization, but that's the exception for gay parents. For the most part, gay people are taking unwanted, under-cared-for children made by a mother and father. So if any aspect of the constitutionality of Prop 8 is about those kids' right to be raised by parents who want them, who will care for them, then gay marriage enhances the rights of kids.
But again, I don't think this is what it's about at all. Kennedy is talking about stalling, delaying... until public opinion makes this issue safer. And that day will come, regardless of how the court rules. But he's advancing a bullshit premise to do it.