Last week the 7th Circuit Court of Appeals heard oral argument in legal challenges to the bans on same-sex marriage in Indiana and Wisconsin. You can listen to the whole thing here and it’s quite amusing. The attorneys for those two states got absolutely pummeled by the judges and were completely unprepared for some very obvious questions. I’m gonna highlight some of my favorite parts, like this exchange between several of the judges and Indiana Solicitor General Thomas Fisher.
JUDGE POSNER: “You allow the homosexual couples to adopt. Why don’t you want their children to have the same advantages as children adopted by heterosexual couples?”
FISHER: “The question is what can we do to nudge heterosexual couples who may produce children, you know, unintentionally to plan for this—to plan for the consequences and appreciate the consequences of sexual behavior. Those consequences don’t arise with same-sex couples. It’s not in the context of adoption that marriage—”
JUDGE POSNER: “But you’re not answering my question. You’ve got millions of adopted children, and a lot of them—200,000 or more—are adopted by same-sex couples. Why don’t you want their children to be as well off as the adopted children of heterosexual couples?”
FISHER: “Of course we do…. [but] the marriage scheme is not set up with adoption in mind.”…
JUDGE WILLIAMS: “Wouldn’t you agree that marriage is not just about having children, but about raising children? You agree that there are two components?”
FISHER: “Oh, yes.”
JUDGE WILLIAMS: “Okay, then are you saying same-sex couples cannot successfully raise children?
FISHER: “Absolutely not.”
JUDGE WILLIAMS: “Well, if Indiana’s law is about successfully raising children and you agree same-sex couples can successfully raise children, why shouldn’t the ban lifted as to them?”
FISHER: “I think the assumption is that with opposite-sex couples there is very little thought given during the sexual act, sometimes, to whether babies may be a consequence.
JUDGE WILLIAMS: “So because gay and homosexual couples actually choose to be parents, choose to take on that obligation, that difference of choice is—you’re, you’re setting that up differently than accidental. So I mean, here are people who want to have children, know they want to have children, it is not accidental, they make that commitment to raise the children. I just don’t get that, it’s another aspect of what Judge Posner is raising.”
FISHER: “And I think the working assumption there, your honor, is that, in that circumstance, the state doesn’t need to nudge those couples to stay together. There already is that working understanding. With opposite-sex couples it may be a fleeting moment of passion that leads to a child and that’s what we’re trying to address, trying to deal with the consequences.”
Such a bizarre and incoherent argument. Apparently straight couples are so irresponsible that the state has to “nudge” them to stay together for the children, but gay couples are so committed to their children that they don’t have to. And Fisher thinks this justifies preventing gay couples from getting married? Does he think that if they do allow gay couples to get married, straight couples will break up despite the children just because they’re no longer given rights that gay couples don’t have?
Wisconsin Assistant Attorney General Timothy Samuelson fared no better. When Judge Posner asked him what the justification was for the law, they had this exchange:
Samuelson: That’s a legislative decision.
Posner: You mean you can’t think of any reason for it?
Samuelson: The statute is written toward the general rule, not the exception. The general rule is for opposite-sex couples.
Posner: And why is that?
Samuelson: Because that’s what the legislature has said.
Posner: Why? Is there a reason? It doesn’t need a reason? Or what?
Samuelson: I think there’s several reasons. I think tradition is one of the reasons…
Posner: Well how can tradition be a reason for anything? I don’t get that. That’s again the Loving case, right? The tradition of forbidding interracial marriage went back to colonial times, it was 200 years old by the time Loving came along.
Samuelson: I think Loving was a deviation from the common law rather than codifying it?
Posner: WHAT? (with some astonishment and frustration) Where’s he come with…look, interracial marriage had been forbidden in the colonies and in many, many states, not just Southern but Western for literally, well more than a hundred years. So why wasn’t that a tradition?Samuelson: Uh…It’s distinguishable, it’s a different tradition.
Posner: Of course it’s a different tradition. So in other words, tradition per se is not a ground for continuing. We’ve been doing this stupid thing for a hundred years or a thousand years, we’ll keep doing it because it’s tradition. You wouldn’t make that argument.
Samuelson: But we’re not making that argument (two minutes after he made that exact argument).
Posner: Don’t you have to have some empirical or some practical or some common sense basis for barring these marriages? I mean, what’s the reason? I didn’t get anything out of your brief that sounded like a reason for doing this.
Samuelson: Our position is that tradition is based on experience, that’s collective experience…
Posner: Yes, Loving, tradition, tradition, hundreds of years, no interracial marriage. They would make the same arguments you would make — tradition. We don’t wanna change it because we don’t know what’ll happen, right?
Samuelson next tried to use the argument that the courts should defer to the will of the people, to laws that are passed democratically. Posner was having none of it. And astonishingly, Samuelson actually ducked into the punch by bringing up Loving again:
Posner: That argument doesn’t get you very far. You’re really saying that there shouldn’t be any constitutional invalidation ever of a state or federal statute because that’s anti-democratic.
Samuelson: We’re not saying that…
Posner: Well what would be an example of a statute passed by a democratically elected legislature that you would consider unconstitutional.
Samuelson: If Wisconsin passed a statute or a constitutional amendment prohibiting interracial marriage, that would clearly be unconstitutional.
Posner: Why? It would be the democratic choice of the people of Wisconsin.
Samuelson: Well at the very least, Loving says so. And Loving would trump the state.
Posner: The whole question here is not whether democracy insulates, you argue that democracy insulates legislation from constitutional invalidation. Now you have to have something better, you have to say, why is your law less…you accept Loving as governing precedent, why isn’t this rather similar, right? People wanna get married and you don’t seem to have any reasons. You don’t say homosexuality is a choice, right?
Samuelson: We’re not making that argument. Frankly, we’re agnostic, we just don’t know.
Posner: What concrete, factual arguments do you have against allowing homosexual marriages?
Samuelson: We have 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 that out Edmund Burke in the Loving case, right? What’s the difference? There was a tradition of now allowing blacks and whites and the other iterations as well from marrying, right? It’s 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 tradition of rather savage discrimination against homosexuals in the United States and the rest of the world?
Samuelson: I won’t disagree that historically homosexual persons have been the target of discrimination, however I won’t agree that that’s the basis for Wisconsin’s law.
Posner: Including governmental discrimination, not just private.
Samuelson: Well Wisconsin was the first state in the nation to prohibit discrimination in employment and housing based upon sexual orientation, it’s been on the books for more than 30 years.
Posner: So why are you drawing a line at marriage?
Samuelson: Um…because that’s a legislative decision…
Posner: But now you’re back to this notion legislative decisions are sacred, right? But every time a statute is invalidated as unconstitutional, a democratic process is overridden.
You really should listen to the audio to hear the exasperation in Posner’s voice as Fisher and Samuelson continually duck and dive and avoid answering his questions squarely. They simply have no answers for them.