Earlier this week, a three-judge panel of the 7th Circuit Court of Appeals heard oral argument in the appeal of a lower court ruling striking down Wisconsin’s ban on same-sex marriage. The panel includes the legendary judge Richard Posner, a libertarian and maybe the single most respected federal judge not on the Supreme Court, and he was clearly not buying the state’s arguments.
Posner: What concrete factual arguments do you have against homosexual marriage?
Samuelson: Well, we have, uh, the Burkean argument, that it’s reasonable and rational to proceed slowly.
Posner: That’s the tradition argument. It’s feeble! Look, they could have trotted out Edmund Burke in the Loving case. What’s the difference? There was a tradition of not allowing black and whites, and, actually, other interracial couples from marrying. It was a tradition. It got swept aside. Why is this tradition better?Samuelson: The tradition is based on experience. And it’s the tradition of western culture.
Posner: What experience! It’s based on hate, isn’t it?
Samuelson: No, not at all, your honor.
Posner: You don’t think there’s a history of rather savage discrimination against homosexuals?
The attorney came under strong questioning by all three members of the panel. This is the problem that the anti-equality side has in all of these case — everyone knows what the real justification for these bans are, it’s bigotry. But they can’t admit that, so they have to invent all of these illogical pretexts that are easy to debunk under questioning.