7th Circuit Pounds Defenders of Indian and Wisconsin Marriage Bans

Judge Richard Posner

As an attorney I understand the concept that in court both sides to a controversy deserve representation.  However, in practice, I do not understand how attorneys can in good conscience argue positions that support discrimination and the mistreatment of other citizens or which in effect seek to subvert the United States Constitution.  To do so, in my view, makes one little better than a paid prostitute and a tawdry one at that.  Seemingly, the judges on the United States Court of Appeals for the Seventh Circuit may have subconsciously shared my view on this issue.  Whatever their views, they laid into the attorneys for the states of Indiana and Wisconsin today during oral argument who sought to defend the anti-gay animus motivated gay marriage bans of those states.   My fellow Bilerico Project contributor, John Becker was in the courtroom and filed this story (the following are highlights):

Same-sex marriage bans in Indiana and Wisconsin took a beating today at the 7th U.S. Circuit Court of Appeals in Chicago, where a three-judge panel greeted anti-equality arguments from Wisconsin and Indiana with a combination of skepticism and derision. The court appears poised to hand marriage equality advocates another federal court win -- and possibly their first unanimous one.

As a packed courtroom looked on, the judges -- Richard Posner, a Reagan appointee; Ann Claire Williams, appointed by Bill Clinton; and Obama appointee David F. Hamilton -- repeatedly tore into Indiana Solicitor General Thomas Fischer and Wisconsin Assistant Attorney General Timothy Samuelson. Posner, by far and away the fiercest interrogator, slammed Indiana's claim that their governmental concern behind regulating marriage is accidental births and "unintended children":

"So now you have a huge number of potentially abandoned children, they're put up for adoption. Don't you think it would help these children, the products of these accidental births, if their parents -- whether same-sex or different-sex -- were married?"

Fischer tried to equivocate, but Posner wasn't having it. "Answer my question," he ordered.
That interaction, which occurred just seconds into Fischer's opening statements, set the tone for the shellacking that was to follow. "Yeah, I'm going to interrupt you," Posner told an obviously frustrated Fischer. "You're just going to have to be patient."

"Would you criminalize fornication?" Posner asked sarcastically. "It sounds like a way of dealing with this unintended child problem."
Judge Williams piled on, expressing disbelief at Fischer's contention that even though same-sex couples can successfully raise children, Indiana's marriage ban should remain because "with opposite-sex couples, there is very little thought given during the sexual act sometimes to whether babies may be a consequence."

"So," Williams said, "because gay and homosexual couples actually choose to be parents, choose to take on that obligation, that difference of choice is set up differently than accidental? Here are people who actually want to have children -- know that they want to have children. It is not accidental; they make that commitment to raise children. I just don't get that."

Judge Hamilton pointed out that marriage bans are based on sex: "Bob can marry Chris if Chris is a female; Bob cannot marry Chris if Chris is a male. So that would seem to point us in the direction of heightened scrutiny."

He also noted the parallels between Indiana's anti-equality arguments and those made in the last century to justify bans on interracial marriage:

"The right to equal protection of the laws is an individual right... [and] the argument you're making is exactly the same argument that was made with respect to race in Loving v. Virginia, and it was flatly rejected by the Supreme Court.

After slamming Indiana's arguments as "ridiculous" and "absurd," Posner (left) returned to the subject of marriage discrimination and how it harms the children of same-sex couples. He asked Fischer whether he'd read a brief filed in the Wisconsin case by the Family Equality Council.

"It has a great deal of rather harrowing information about the problems created for children and their parents in the case of same-sex couples not being allowed to marry who have adopted children -- how they feel when they grow up, how what happens when one of their parents dies."

And then the clincher:  "What's on the other side of this scale outweighing these costs? Is there any empirical basis for anything you've said?"

The state of Wisconsin didn't fare any better. In fact, there were several points where Assistant Attorney General Timothy Samuelson couldn't muster any kind of an answer to the judges' withering questions.

 

Posner nearly laughed Samuelson's appeals to tradition out of court: "How can tradition be a reason for anything?" he said. "I don't get that. Once again, the Loving case: the tradition of forbidding interracial marriage went back to colonial times. It was 200 years old by the time Loving came along."

Samuelson responded that Loving was a deviation from, rather than a codification of, common law, eliciting incredulity from the court. Posner set him straight:

"Interracial marriage had been forbidden in the colonies and in many, many states... for more than 100 years... so in other words, tradition per se is not a grounds for continuing. 'We've been doing this stupid thing for 100 years, 1,000 years; we'll keep doing it because it's tradition.' You wouldn't make that argument. Don't you have to have some empirical or some practical or common-sense basis for barring these marriages? I didn't get anything out of your brief that sounded like a reason for doing this."

Later, Posner called the tradition argument "feeble" and asked whether the state had anything better. He also took issue with Samuelson's contention that the tradition of marriage discrimination is based on "experience."

"It's based on hate, isn't it?" Posner asked. When Samuelson responded in the negative, Posner replied, "You don't think there's a history of rather savage discrimination against homosexuals in the United States and the rest of the world?"

Judge Posner had similarly little use for Samuelson's appeal to democracy. "That argument doesn't get you very far. Are you really saying there shouldn't be any constitutional invalidation, ever, of a state or federal statute because that's 'anti-democratic'?"

And then, if it weren't already abundantly clear which way he'd be voting, Judge Posner tipped his hand:

"What is the rational basis for a legislative choice denying same-sex marriage? We know that these people want to get married; we think, at least I think, it's good for the kids -- what's the offsetting harm? ...These people and their adopted children are harmed by your law. Now the question is, what is the offsetting benefit of your law? Who's being helped by it?"

Samuelson repeatedly attempted to dodge the question . . . .

There's more, so read the entire post.  Overall, it was a bloodbath against the defenders of discrimination.  Should the court rule unanimously to strike down the two state bans, I suspect that the opinion will make most interesting reading.  It is also noteworthy that the most aggressive judge in challenging the smoke screen justifications of both state was a Reagan appointee.