Sometime Bench Memorandist Gerry Bradley has an excellent reflection at SCOTUSblog on the two days of argument this week in the same-sex marriage cases. A small sample:
The oral argument in Perry . . . reveals a Court worried that it does not know what it needs to know to decide the basic issue common to both cases. Justice Kennedy voiced this concern when he said (to Ted Olson), “the problem in the case is that you’re really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, . . . it is a cliff.” . . .
[Charles] Cooper was often interrupted in mid-sentence. But he succeeded in putting on offer (in my words) the following proposition: gendered marriage laws are justified by the fact – the moral reality – that marriage is gendered. Redefining marriage as genderless obviously changes the meaning of marriage across our society. The “harm” of doing that is just the harm that it does to people’s opportunities to know, understand, and to participate in marriage as the gendered relationship that it truly is.
Read the rest here.