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Thank You, Justice Kagan, From This Infertile Woman

From today’s SCOTUS transcript:

Justice Kagan: Well, suppose a state said, Mr. Cooper, suppose a state said that because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55.  Would that be Constitutional?

Mr. Cooper: No, your Honour, it would not be Constitutional.

Justice Kagan: Because that’s the same state interest, I would think, you know.  If you are over the age of 55, you don’t help us serve the government’s interest in regulating procreation through marriage.  So why is that different?

And in one fell swoop, Justice Kagan not only forwards the conversation about marriage equality, but she also gives voice inadvertently to every childless, child-free, or infertile person who has felt marginalized in a procreation-focused society and pointed out that there are a multitude of reasons to marry, and a multitude of ways to lead a good life.

Thank you, Justice Kagan.

May the Supreme Court finally rule what the majority of us already know: that love is love.  That sometimes it isn’t enough to say to each other, “we are a couple.”  Sometimes you need others chiming in with recognition of your couplehood — and this includes family, but it also includes your national and state government — repeating back to you those words: “you are a couple.”  In a world that sometimes attempts to stamp down love while bemoaning that there just isn’t enough of it in this world, our family chooses to stand with love and marriage equality.


1 Jamie { 03.26.13 at 11:16 pm }

YES!!! Thank you.

2 It Is What It Is { 03.26.13 at 11:18 pm }

And that is how a reasoned Supreme Court Justice should think.

3 Dora { 03.26.13 at 11:25 pm }

Our family stand with you. Thank you for us, too, Justice Kagan.

4 Tigger { 03.26.13 at 11:26 pm }

YAY! Score one for at least one Justice of the Supreme Court. May there eventually be many more like her.

5 Kathy { 03.26.13 at 11:31 pm }

I heard about this too and loved the way her words encompass so many important issues, as you highlight here. Preach on, Justice Kagan and Lollipop Goldstien!

6 knottedfingers { 03.27.13 at 12:10 am }

Amen! Love is Love is Love!

Today my kid saw saw the art of Grumpy Cat holding the Marriage Equality sign and asked what he was doing. I told her and she goes

‘Ohh so if someone is telling the cat that you can’t marry a boy or you can’t marry a girl? The cat is saying YES YOU CAN YES YOU CAN!!! That’s a really good cat’

7 melissa { 03.27.13 at 7:31 am }

LOVE this!!!!

8 Ellen { 03.27.13 at 7:46 am }

Hell yeah! I liked this comment from Irin Carmon at Salon:

“It is surely inconvenient for Cooper and his co-counsels to have to face the two newest members of the court, who one way or another have failed to fulfill their apparent female responsibility of procreation within marriage — Sotomayor is divorced, Kagan never married, and neither has children. (The third female justice, Ruth Bader Ginsburg, is not exactly known for her sympathy to arguments based on traditional sex roles.) Neither of these justices was ever likely to uphold a ban on gay marriage, but their questions helped get to the heart of the matter.”

HATE Scalia for joking about fertility testing for marriage licenses.

Also, Charles Cooper tried to argue that combined infertility doesn’t really exist:
MR. COOPER: Your honor, even with respect to couples over the age off 55, it’s very rare that both couples — both parties to the couple are infertile and the traditional -­ (Laughter.)


MR. COOPER: Very few men outlive their own fertility.

Hey, asshats, my husband was diagnosed with male factor infertility at age 30. That’s nearly two thirds of a lifetime. Female factor infertility only is implicated in just one third of infertile couples.

9 Tiara { 03.27.13 at 8:05 am }

Here! Here!!

10 loribeth { 03.27.13 at 8:16 am }

I was wondering if you were going to address this, Mel. 😉 Being at work, I missed the hearing & a lot of the coverage, but I did read a Salon article later that singled out Justice Kagan’s remark (also Justice Scalia’s attempt at “humour” — “I suppose we could have a questionnaire at the marriage desk when people come in to get the marriage – you know, are you fertile or are you not fertile? “). I was furious at him, and cheering for her. 🙂


We’ve had marriage equality here in Canada for several years now. The roof hasn’t caved in yet. 😉 There are a lot of other things that I think people should be more worried about in this world.

11 loribeth { 03.27.13 at 8:21 am }

By the way, Kathy has a lovely post up, explaining why she support marriage equality:


12 Katherine A { 03.27.13 at 8:30 am }

Thank you, Justice Kagan! This is wonderful.

13 Katie { 03.27.13 at 8:52 am }

Love this. Thank you for making me smile this morning. (I had a much better reaction to this than to Justice Scalia’s “joke” about infertility.)

14 Chickenpig { 03.27.13 at 9:03 am }

YES!!! My husband has probably been infertile since he was at least 13 (he had the mumps, people get your kids vaccinated!).

Ironically, the state of CT does make couples go through some form of infertility testing prior to getting their marriage license. Women are tested for Rubella, which can render you infertile, but the men are not. They are tested for VD. They may not do it anymore, since I did get married 16 years ago, but when I got married you had to have a physician checked on your form who could follow through with you if your tests should come out positive. Gay marriage is legal in CT now, though, so maybe both partners are tested for VD and/or Rubella? I can’t see them getting rid of the testing all together since the state rakes in about 100 smackers per couple. 😉

15 KeAnne { 03.27.13 at 10:08 am }

Yep. I was so irritated that fertility and infertility have been brought into this case.

16 magpie { 03.27.13 at 10:37 am }


17 Shelby { 03.27.13 at 11:22 am }

Beautiful! And there ya go: using actual reason. It’s something more people need to start doing.

18 Monique { 03.27.13 at 12:25 pm }

Love it love… absolutely. ♥

19 jjiraffe { 03.27.13 at 1:14 pm }


20 Pepper { 03.27.13 at 2:31 pm }


21 YeahScience! { 03.27.13 at 2:34 pm }

Oh my gosh, I am having SO MANY face-palm moments hearing these insane arguments from people trying desperately to maintain that marriage should only be between a man and a woman. And especially the argument you mention above — aside from infertiles or older folks, I also know a LOT of hetero couples in their 30s who are married and don’t ever want children, and I think they’d be pretty shocked if you told them their union wasn’t recognized anymore. Crossing my fingers for a winning verdict here!

22 kateanon { 03.27.13 at 3:14 pm }

I’m glad to hear this kind of argument. In the last few days, I’ve heard a lot of statements that made me crazy, about the “point” of marriage if you don’t have children, as well as the value of your life if you do not contribute a child to society. It’s nice to recognize that there is more I can give the world than a child. I appreciate that some people choose to marry so they can have a family, but I want people to keep in mind that me and my significant other and other couples – whether they label themselves gay, straight or something else entirely – are ALSO a family, regardless of their childbearing status.

23 sarah { 03.27.13 at 6:44 pm }

Here, here! Was just going to blog about this very exchange – I wonder if Kagan knows that thousands of infertiles are applauding. Fingers crossed that this is the beginning of the end of DOMA and other discriminatory laws…

24 Becky Burress { 03.28.13 at 9:55 pm }

Here here! Families come in all shapes and sizes (cliche but true!) and I’m tired of being devalued by society for not having children. Good- I’m glad this discussion is being dragged out into the light, even if it is in a roundabout way.

25 gradualchanges { 03.29.13 at 3:09 pm }

Where is your “like” button?

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