In the Prop. 8 arguments on Tuesday, Justice Kennedy focused on the fact that there are 40,000 adopted children of same sex couples in California. It was perhaps the most poignant moment in the whole oral argument (I bothered to listen):"On the other hand, there is an immediate legal injury or legal — what could be a legal injury, and that's the voice of these children. There are some 40,000 children in California ... that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?"I don't think that Justice Kennedy was asking a question here. Justice Scalia followed up with an oblique history reference:
"I mean, we granted cert. I mean, that's essentially asking, you know, why did we grant cert. We should let it percolate for another — you know, we — we have crossed that river, I think."The allusion to Caesar crossing the Rubicon was appreciated by the historian in me. The phrase originates with Julius Caesar's seizure of power in the Roman Republic in 49 BC. Roman generals were strictly forbidden to bring their troops into the home territory of the Republic in Italy. On 10 January, Caesar led his army across the Rubicon River, crossing from the province of Cisalpine Gaul into Italy. After this, if he did not triumph, he would be executed -- it was a point of no return.
I think that Justice Scalia (and probably Justice Kennedy) are aware that society has reached a point of no return when the families of 40,000 children are at issue. The court needs to do something, one way or another. I continue to think there's going to be a decision on the merits.