Link: http://www.nationalreview.com/bench-memos/344166/prop-8-case-and-infertile-couple-canard-ed-whelan (via shareaholic.com)
As Justice Kagan observed, there will, of course, be some opposite-sex couples whose infertility together may safely be presumed. But to imagine that that fact cuts against the development of marriage as a male-female union is to subject marriage to a level of hyper-exacting scrutiny that can't be justified. (Plus, as Chuck Cooper correctly pointed out—to the guffaws of snarkers like Dana Milbank who don't even have the decency to fairly recount what he said—even for an aged couple it is very likely that the husband retains his fertility, and the marital norm of fidelity operates to help ensure that he doesn't have children outside the marriage.)
As Justice Kagan observed, there will, of course, be some opposite-sex couples whose infertility together may safely be presumed. But to imagine that that fact cuts against the development of marriage as a male-female union is to subject marriage to a level of hyper-exacting scrutiny that can't be justified. (Plus, as Chuck Cooper correctly pointed out—to the guffaws of snarkers like Dana Milbank who don't even have the decency to fairly recount what he said—even for an aged couple it is very likely that the husband retains his fertility, and the marital norm of fidelity operates to help ensure that he doesn't have children outside the marriage.)
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