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The 24 Things I Learned From Listening to the Marriage Arguments Before the Seventh Circuit

Jim Burroway

August 27th, 2014

Yesterday, a three judge panel of the Seventh Circuit Court of Appeals heard oral arguments in two marriage cases, Wisconsin’s Wolf v. Walker and Indiana’s Baskin v. Bogan. Now we’ve all enjoyed Dustin Lance Black’s rendering of the 2009 Prop 8 trials for his as-yet unproduced play “8,” but the audio of these two cases are, in my view, far more entertaining than anything that any Hollywood screenwriter can conjure. Rob and Timothy have recommended that you listen to them both with and without Vicodin. I think this one is equally entertaining whatever your medicinal state may be.

You’ll need about a half-hour for each case to hear the good parts, and that’s if you skip all of the boring parts. But in case you don’t have the time to spare — and you really should try to make the time to do it — I’ve transcribed the good parts. So let’s do this thing Buzzfeed listicle style.

1. These three judges are awesome!

The Seventh Circuit has an unusual practice: they don’t announce the judge’s name until the day of oral arguments. I can imagine this having one important function, in that it prevents the litigants from tailoring their preparations for what they believe the particular judges will be interested in. For the marriage ban proponents, that apparently meant that if they couldn’t tailor their preparations, they just wouldn’t bother to prepare at all. You’ll see why later. But first, let’s meet the judges, who were announced just a half hour before the case began.

Judge Ann Claire Williams, is a Clinton-appointee, a former U.S. Assistant Attorney from Chicago, and a former Detroit elementary school teacher. She was appointed to the Federal Bench in 1985 by President Ronald Reagan, and unanimously confirmed by the Senate when she was nominated to the Seventh Circuit in 1999.

Judge David Hamilton was nominated for the Federal bench by Clinton in 1994. He drew the ire of social conservatives in 2005 when he ruled that the Indiana legislature violated the Establishment Clause of the First Amendment when it opened its sessions with prayers asking for conversion to the Christian faith or representing Christianity as the only true religion. So when Obama nominated him to the Seventh Circuit, several Senators threatened a filibuster. The Senate voted 70-29 to end the filibuster (Democrats and Independents held a 60-vote supermajority by then), and approved his nomination 59-39.

Judge Richard Posner was nominated by Ronald Reagan to the Seventh Circuit in 1981. An economist and respected legal scholar, he worked with Robert Bork — yes, that Robert Bork — to help shape anti-trust policy changes in the 1970s. The New York Times called him “one of the most important antitrust scholars of the past half-century.” He is also on record as thinking that privacy arguments are over-stated. “I’m exaggerating a little, but I think privacy is primarily wanted by people because they want to conceal information to fool others.” As Timothy already mentioned, “Not only is he the most cited legal scholar of the 20th century, but he was the judge that sided in favor of anti-gay students in one of the t-shirt wars.” You might think he’d be the troublemaker for marriage equality supporters. He wasn’t. In fact, he was the star of this entire show.

2. You read that right: the conservative, anti-gay-student backing, Bork-working-with judge was the star of the show.

This became obvious just eight seconds into Indiana Solicitor General Thomas Fisher’s presentation, when Judge Posner interrupted him to cite some statistics on the number of children who were adopted in the United States:

Posner: This figure I gave, about 250,000, is the number of children who have been adopted by homosexuals, including the three thousand plus in Indiana. Wouldn’t it be better for these adopted children if their same-sex parents were married?

Fisher: Whether it would or not ….

Posner: Well answer my question.

Fisher: I don’t know the answer….

Posner: Well you don’t know the answer. Let’s think about it the answer. Think back to when you were six. Suppose you come home, suppose you’ve been adopted by same-sex parents. You come home one day from school. And you say, you know all the other kids in my class, they have a mom and a dad. I just have two dads or two moms. And, you know, what’s that about? And suppose the parents say, well you know, in our society an adult can marry a person of the opposite sex or a person of the same sex. But you know it’s marriage in both cases, so your classmates kids, their parents are married, your parents are married so there’s nothing to worry about.

Now contrast that with a situation where the parents say to the child, well you know, we’re your parents, but we’re not allowed to be married. So it’s just a difference. Now which do you think is better for the psychological health or the welfare of this child? To have the married same-sex couple, or the unmarried?

Fisher: Your honor, I don’t feel like it’s my job to answer that question. That is for the Indiana legislature….

Posner: Well no, I’m just asking you, do you have an opinion…

Fisher: No.

Posner: …It’s a matter of indifference to you.

3. If you’re going to make it about the children, then let’s really make it about the children.

And for the next twenty minutes, Judges Williams, Hamilton, and, especially, Posner did just that:

Posner: Now it turns out of course that Indiana provides, and the Federal government is dragged along with it, very substantial, tangible benefits to a married couple. Don’t the children of a married couple, whether same-sex or opposite-sex, don’t they benefit? The married parents are better off. They have all sorts of benefits — survivor benefits, spousal security, tax exempt… all sorts of things in federal and state. Doesn’t that make the kids better off?

Fisher: Undoubtedly, but … may I continue?

Posner: Undoubtedly! Now you’re saying … I’m going to interrupt you, so you just have to be patient. But I’m not going to limit your time. You have plenty of time. You are concerned with the unfortunate children produced by accidental births. I’m saying many of these are adopted by same-sex couples, and these children would be better off if their parents can marry. No? Isn’t that obvious?

Fisher: Well… If we’re going to link marriage rights to parental rights, that does not limit it to two people. We have instances where there are more than two recognized parents. This is a possibility. So what we’re looking at here is….

Posner: Wait. What? Someone has three parents? Five parents?

Fisher: Yes. It happens. We cite cases in our briefs where three people with parental rights have been recognized. So if parental rights…

Posner: This is worrying you or what?

Fisher: I’m sorry?

Posner: This is worrying you?

Fisher: Yes! It’s worrying me.

Posner: The three parents? (chuckles)

4. The “We-need-to-ban-gay-marriage-because-straight-people-are-irresponsible-sex-crazed-maniacs” argument doesn’t work very well:

Perhaps sensing that the polygamy threat isn’t going to go very well, Fisher tries to pivot to what he thought would be a stronger argument:

Fisher: …If parental rights trigger marriage rights that in circumstances where more than two people have parental rights, they would also have marriage rights among themselves. That’s the logic of the view that parental rights and marriage rights follow hand in hand. And the position that we’re making, pointing out here, is that this is really about looking at the… issue of what happens… how do we deal with the consequences of heterosexual intercourse which don’t occur with respect to same-sex couples, the consequence being babies …

Hamilton: … But I’d like to follow up on this question about intent, of unintended pregnancies. You said in your brief that “marriage attracts and regulates couples whose sexual conduct may create children in order to ameliorate the burden society ultimately bears when unintended children are not properly cared for.” My question is why is that interest limited to unintended children?

Fisher: Well, it’s only, I think, with respect to where does the legislature identify the issue. In other words…

Hamilton: Well, when we talk about intended pregnancies, when the CDC looks at that — they have ways of doing surveys and so on in asking, typically, the mother whether their pregnancy was intended at the time of conception. That may be a fleeting intent. I would think that the state’s interest is equal regardless of whether the children are intended or unintended.

Fisher: I think we have to look at it at the standpoint of, again, if we don’t have marriage, what is the issue we’re dealing with. We’re dealing with widespread heterosexual activity that creates babies. There has to be a mechanism to deal with that. The mechanism is, let’s channel potentially procreative couples into relationships that are durable and longstanding and will remain together for the sake of the child. Now if it could be assumed that all parents would intentionally procreate, intentionally go about the process of becoming parents with that specific idea in mind and otherwise…

Hamilton: People change their minds… I mean, the intent at the time of conception is fleeting and changeable and the issues are the same, the issues of support, the kinds of issues that you’ve developed, are the same regardless of whether the child was intended or not.

Fisher: I think the issue here is to deal with what may be a fleeting moment of passion that leads to a child that nobody contemplated, and how do we deal with that? And the idea with marriage is to channel that behavior into a specific….

Posner: Do you criminalize fornication?

Fisher: I’m sorry, what?

Posner: Do you criminalize fornication?

Fisher: No, no longer.

Posner: Would you like to?

Fisher: I don’t…. No! It’s not an issue here. The Legislature hasn’t done this in a long time….

Posner: Well it sounds like a way of dealing with these unintended childbirths.

5. When you ask why kids of gay parents should be worse off than kids of straight parents, they have no answer.

Of course, we’ve always known that:

Posner: So why do you prefer heterosexual adoption over homosexual adoption?

Fisher: We don’t.

Williams: Well of course you do! You give all sorts of benefits to the heterosexual adoptive parents and no benefits to the homosexual adoptive parents. You must have a reason for that.

Fisher: Well, the benefits that you are talking about are not triggered based on sexuality. They’re based, of course, on marital status.

Williams: Yes, well come on now! You’re going in circles! The question is, why do you want the children who are adopted by same-sex couples, of whom there are a couple hundred thousand, why do you want them to be worse off because they don’t have these financial and psychological benefits to having married parents?

Fisher: It’s not a matter of wanting them to be worse off. It’s a matter of what is the starting point for the marriage….

Posner: Why don’t you want them to be as well off as children…. 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 unintentionally, to plan for this, to plan for the consequences and to 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 is….

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 may I ….

Posner: … because their parents happen to be homosexuals?

After about another minute of this:

Williams: I don’t think you’re going to answer Judge Posner’s questions. (Laughter)

6. Marriage is actually a kind of an affirmative-action program to help level the playing field for straight couples because they’re hopelessly irresponsible when compared than gay couples.

Judge Williams tries again after the laughter dies down.

Williams: …So let me see if I can put it a little bit differently. Wouldn’t you agree that marriage is not just about having having children but about raising children? Do you agree there are two components?

Fisher: Oh, yes.

Williams: Okay. Then are you saying same-sex couples cannot successfully raise children?

Fisher: Absolutely not.

Williams: Well if Indiana’s laws are about successfully raising children, and you agree that same-sex couples can successfully raise children, why shouldn’t the ban be 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.

Williams: So because gay and homosexual couples actually choose to be parents, choose to take on that obligation, that difference of choice … you’re setting that up differently than an accidental … So I mean here are people who actually want to have children, know they want to have children, it is not accidental, they make that committment to raise the children, I just don’t get that. That is 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 which leads to a child. And that’s what we’re trying to address.

7. Right. Posner’s still not buying it.

Posner: Sure. But you’re forgetting everything else. Look, there are 400,000 kids in foster care in the United States. Ten thousand in Indiana. Isn’t there a strong interest in trying to get them adopted?

Fisher: Of course.

Posner: Isn’t it much better for the kids to be adopted?

Fisher: Of course.

Posner: Yes, but if you allow same-sex marriage, you’re going to have more adopters, right?

Fisher: I don’t know that that’s true.

Posner: Well it’s much cheaper to adopt a child if you’re married because you get all these benefits from the state and the federal government. You should be wanting to enlist people as adopters so you can minimize… That is pathetic — ten thousand foster care children in Indiana. Don’t you want to get them adopted?

Fisher: Of course, but now you’re talking about…

Posner: What are you doing to get them adopted?

Fisher: You’re talking about prioritizing competing issues. And that’s the legislature’s job. … The legislature has an understanding of marriage that it has decided to preserve, and it’s based on…

Posner: But it’s arbitrary. It doesn’t serve any public… You allow all these sterile people to get married. Why are you doing that if you’re so concerned procreation, why do you let them get married?

8. If you link to a Buzzfeed-style listicle from inside a Buzzfeed-style listicle, will the universe double back onto itself and collapse into an infinitesimally small singularity?

Let’s try it and see: Seven moments that will make you want to gay-marry Judge Richard Posner.

9. Indiana’s case didn’t go well. Wisconsin’s was worse.

Wisconsin Assistant Attorney General Timothy Samuelson started off on the wrong foot when he didn’t know the answer to four of the judges’ first five questions:

Posner: Why doesn’t Wisconsin permit adoption by same-sex couples?

Samuelson: Respectfully, your honor, that’s a question for the legislature. I don’t have a …

Posner: You have no idea, okay.

Samuelson: I do know that Wisconsin recognizes both couples in a same-sex relationship to petition the court to be recognized as a de-facto parent.

Posner: What’s a de-facto parent?

Samuelson: someone who would have the same or similar responsibilities and obligations as a parent. And there’s a case from 1995 that the Wisconsin Supreme Court…

Hamilton: Does that open up the possibility that a child may have three parents?

Samuelson: I don’t know. I think what may trigger that circumstance involving three parents would be the presumption of paternity, and that’s something that we’ve discussed in our papers.

Hamilton: I was thinking more of, for example, a child of an opposite-sex couple who divorced, on of the members then joins a new partner of the same sex who then is recognized as a de facto parent. You have three parents.

Samuelson: I don’t know the answer to that, but based on the Holtzman (?) case, the ’95 Wisconsin Supreme Court case, the court discussed equity, recognizing that de-facto parent. So there is the potential for that. I just can’t answer that. That would be a question for the courts.

Williams: Let me get back to this de-facto parent. So do all the rights and benefits accrue to that child from its de facto parent in terms of inheritance rights and all the other rights?

Samuelson: I don’t know the answer to that question, and frankly I haven’t looked into that. However, those rights can be subject to contract rights. Parties can petition the court for those types of recognitions, but I can’t say that, to your honor, whether or not…

10. Rational basis! What’s the Rational Basis?

One of the tenets of constitutional law is that if you’re going to have a law, you have to have a halfway decent reason for it. So, for example, why does Wisconsin make it so hard for gay people to adopt?

Posner: Why are those, why are all those obstacles strewn in the path of these people?

Samuelson: That’s a legislative decision…

Posner: You mean, you can’t think of any reason for it?

Samuelson: Well, the statute is written towards the general rule, not the exception. The general rule is for opposite-sex couples.

Posner: Why is that?

Samuelson: Because that is what the legislature has said.

Posner: Why? Does it have a reason? It doesn’t need a reason? What?

Samuelson: There are several reasons. I think tradition is one of the reasons.

11. Tradition is not a good reason.

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’s two hundred years old by the time Loving came along…

Samuelson: I think Loving was a deviation from the common law rather than the codifying….

Posner: (Scoffs)

Hamilton: (Incredulous) What?

Posner: (Scoffs again.) What’s he trying? 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: It’s distinguishable. It’s a different tradition…

Posner: Well of course it’s a different tradition! So in other words, tradition per se is not a ground for, you know, continuing, “we’ve been doing this stupid thing for a hundred years, a thousand years, we’ll keep doing it because it’s tradition.” You wouldn’t make that argument.

Samuelson: We’re not making that argument.

Posner: 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.

Samuelson: Our position is tradition is based on experience, that’s collective experience…

Posner: But Loving, tradition, tradition, for hundreds of years, no interracial marriage. They’d make the same arguments you would make. It’s tradition. We don’t want to change it because we don’t know what’ll happen, right? Change a tradition? It’s terrible! What if men stopped shaking hands, right? It’d be the end of the nation.

12. The judges appear to have already descided that marriage equality as an equal protection issue is a no-brainer.

That became obvious when they were quizzing marriage equality supporters in the Indiana case after having eviscerated Fisher. It also appeared to be a foregone conclusion here.

Williams: And see, I think Loving threw out this positive/negative distinction of the Fourteenth Amendment that you try to rest on because … I just don’t see how you get around Loving because I think that killed that argument you’re making.

Samuelson: But Loving is primarily an equal protection case. …

Posner: This is an equal protection case.

Hamilton: Sure, but it has the last paragraph that is substantive due process all the way, right?

Williams: Right. In the very last paragraph…

Hamilton: Should we ignore that?

13. Deference to the democratic process isn’t a good reason either.

Posner asked Samuelson if he had any other reasons for Wisconsin’s marriage ban, besides tradition:

Samuelson: Well, deference to the democratic process. And one of the reasons that…

Posner: Well that argument doesn’t get you very far. You’re really saying there shouldn’t be any constitutional invalidation ever of a state or federal statute because that’s anti-democratic.

Samuelson: But, we’re not saying that…

Posner: What would be an example of a statute passed by a democratically-elected legislature that you would consider…

Samuelson: If Wisconsin passed a statute or a constitutional amendment forbidding 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.

Posner: I know, but 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 want to get married, and you don’t seem to have any reasons.

14. And trotting out Edmund Burke won’t work.

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 homosexual marriage?

Samuelson: We have the Burkean argument that it’s reasonable and rational…

Posner: (Scoffs) That’s a tradition argument. It’s feeble. Look, they could have trotted out Edmund Burke in the Loving case. What’s the difference?

Samuelson: Frankly, your honor…

Posner: It was a tradition not allowing blacks and whites and other interracial couples from marrying, right? It’s a tradition that got swept aside. Why is this tradition better?

Samuelson: Well, the tradition is based on experience, and it’s the tradition of western culture…

15. And hate is DEFINITELY not a reason.

Posner: What experience? It’s based on hate, isn’t it?

Samuelson: No! Not at all, your honor!

Posner: No? You don’t think there’s a history of rather savage discrimination against homosexuals in the states and the rest of the world?

Samuelson: I won’t disagree that historically homosexual persons have been the targets of discrimination. However, I won’t agree that that’s the basis for Wisconsin’s laws.

Posner: …Including governmental discrimination, not just private?

16. If you want to get on a judge’s good side, you should really try answering at least one of his questions.

Posner: So why are you drawing the line at marriage?

Samuelson: Um. Because that’s a legislative decision.

Posner: (scoffs) But you’re back to this notion that legislative decisions are sacred, right? But very time a statute is invalidated as unconstitutional, the democratic process is overridden. So give me a reason why — not that is a legislative choice — what is the rational basis for a legislative choice denying same-sex marriage? We know that these people want to get married. We think, or at least I think, it’s good for the kids. So what’s the offsetting harm?

Samuelson: Well, respectfully, your honor, I think that flips the inquiry on its head rather than asking what the rational basis is for the law…

Posner: Come on! What is the offsetting… These people and their children, their adoptive 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: Your honor, respectfully, that turns the analysis on its head. …

Posner: (raises his voice) Look! Answer my question! Who is being helped by this law, if anyone?

17. Regnerus is toast.

Samuelson tried to suggest that society was being “helped” by prohibiting gay people from marrying. He quickly aborted that argument:

Posner: How? How is society being helped?

Samuelson: As Mr. Fisher discussed, marriage is an institution that provides for a…

Posner: (sounding frustrated) I know, but how is it being… You’re not trying to force homosexuals into heterosexual marriage.

Samuelson: No we’re not.

Posner: So what is the harm of allowing these people to marry? Does it hurt heterosexual marriage? Does it hurt children? What is the harm?

Samuelson: Frankly, at this point we don’t know if there is a harm, if any.

18. I didn’t think it was possible, but right about now I was really starting to feel sorry for Samuelson.

Throughout the proceedings, you could have heard  Samuelson squirming all the way from Mars. All of those questions, one after another, questions piling upon questions, and Samuelson had no answers for any of them. After fifteen minutes of this — which surely must have seemed like an eternity to him as it did for me — Samuelson saw a light, and he hoped that it might save him:

Posner: …you can say with Loving, you can say look, you’re not giving a good reason for banning interracial marriage, but it’s been like two hundred years and we’re afraid to overrule because we don’t know what’ll happen. Right? You could say that for every constitutional case. We don’t know what’ll happen. Let women have access to contraception? Connecticut in 1964? We don’t know what’s going to happen. Society may collapse. Why isn’t that always a problem?

Samuelson: First off, the yellow light’s on. May I respond your honor?

Posner: Yes, because the yellow light, it just tells you …

Williams: It won’t save you. (courtroom erupts in laughter.)

Samuelson: It was worth a shot, wasn’t it? (more laughter)

Williams: Yes.

Hamilton: It’s been tried before.

Williams: It has. Nobody’s ever won that one though.

19. Rational basis again! Also, Regnerus is still toast!

Williams: So you have no, you can’t give us any rational… you can’t give us the harm. Harm, of course, is tied into a rational basis. Some basis for the gov… some legitimate government interest has to be at stake, and you don’t have any to give us.

Samuelson: I would say we defer to Mr. Fisher’s arguments, but we also believe that marriage provides a mechanism for tying unplanned children to their biological parents.

Posner: Of course not! We give them up, right? There are these hundreds of thousands of people in foster care.

Samuelson: Frankly, I reject that premise.

Posner: Isn’t there hundreds of thousands of children in foster care…

Samuelson: Oh, I don’t doubt that.

Posner: Hundreds of thousands being brought up by same-sex couples?

Samuelson: Oh I don’t doubt that either.

Posner: Do you think it’s harmful to them?

Samuelson: That, I don’t have a position. I don’t know. I am not aware of any information or data or argument relating to it.

Posner: Really?

Samuelson: It certainly hasn’t been briefed.

20. Gay people shouldn’t be allowed to marry because NO FAULT DIVORCE!

If it hasn’t always been obvious, it should be by now: Whenever same-sex marriage opponents are forced to step outside of their hermetically-sealed bubbles and explain rationally why they oppose marriage equality, they are utterly incapable of doing so. It just goes to show how staying in that bubble where your arguments are never challenged leaves you completely unprepared to deal effectively with other people’s arguments. And so after being pressed by Posner for several minutes to try to think of just one rational basis for denying marriage equality to same-sex couples, Samuelson reached back into that bubble and dragged out something that was utterly unrelated:

Samuelson: Well, what Justice Alito said, there’s no consensus among experts, philosophers, etc. An example is no fault divorce, after no fault laws were passed, divorce skyrocketed.

Posner: Look, with no fault divorce, you could certainly say look there are problems here. No fault divorce, marriage is going to be destabilized — you could speculate, right? So I’m asking you to speculate, what is it that we might want to… what would slow us down because something bad might happen because of homosexual marriage in Wisconsin. What are the possibilities?

Samuelson: The possibilities are we don’t know. There could be an unanticipated consequence…

Posner: You can’t guess?

Samuelson: The only example I can give is the no-fault divorce and to the extent that that had an adverse effect…

Posner: But we can see why…

Hamilton: That’s fewer marriages, not more marriages, right?

Samuelson: I’m sorry your honor?

Hamilton: That’s fewer marriages, not more marriages, right?

Samuelson: Yes, but the… the argument there is that it had an adverse effect on the institution of marriage.

Posner: But that was discussed when no-fault divorce was being debated.

21. Samuelson is not smarter than a fifth grader.

While Posner drilled Fisher for twenty minutes about children, he drilled Samuelson for thirty minutes trying to get Samuelson to come up with just one example of a rational basis for denying marriage to same-sex couples. It’s like a teacher trying to teach student about reptiles and then asking the student to come up with one example — just one example — of a reptile. This is Posner trying to work with that child.

Posner: What are the concerns that bother people about the future of homosexual marriage? There are nineteen states have it. Suppose fifty states have it. What happens? What could happen?

Samuelson: Just like Justice Alito said, there’s not consensus…

Posner: You have no idea! I’m not talking about consensus. I’m talking about… what speculatively might happen that we should worry about?

Samuelson: The only answer I can give is no-fault divorce. There might be similar…

Posner: Okay, what might be similar? Give me an example of similar?

Samuelson: It would, uh, potentially, devalue the institution of marriage and maybe fewer people would likely enter into it.

Posner: Why would fewer heterosexuals marry because homosexuals marry?

Samuelson: Uh, your honor, I haven’t anticipated this. I’d be happy to brief it…

Posner: How can you brief when you don’t know anything?

And the child gets an “F.”

22. The policy to promote childbirths in marriage is broken.

And another argument against same-sex marriage falls:

Hamilton: If I could follow up a little bit, both you and Indiana have argued that what you really want to do is promote childbirths in marriage. Right?

Samuelson: Right.

Hamilton: And encourage parents to stick together and raise those children. Right?

Samuelson: Correct.

It’s sad to hear how relieved Samuelson sounds right now. That didn’t last long:

Hamilton: I assume you’re familiar with how that’s been working out in practice over the last twenty-five or thirty years. I checked. From, let’s see, over a twenty-year period, from 1990 to 2009, the proportion of births to unmarried mothers increased by 53% in Wisconsin, by 68% in Indiana. And obviously with the Wisconsin figure it was 37% nonmarital births in 2009. If we break that down by age, race, ethnicity, and education levels, we find some groups of women who under the current state policies have more than 80%, some even more than 90% of their births outside marriage. It’s a little hard to see, if that’s as important as you’re telling us it is as a policy goal in the state, it’s a little hard to see how significant it is with the rest of the state’s family policies, given those results.

Samuelson: First of all, I’m not aware of those results until just hearing them now.

Hamilton: Those are CDC… I mean, these are unimpeachable government statistics.

Samuelson: I’m not quarrelling with that.

Hamilton: Surely you’re aware of the dramatic rise in births outside marriage.

Samuelson: I had not been specifically until just now. But my response to that your honor, would be under Dandridge (?), the state may rule incrementally that the state….

Hamilton: It’s sort of like trying to focus on the mote in someone else’s eye while ignoring the beam in one’s own. If what you’re really trying to do, as we’re being told here, is define marriage strictly in terms of opposite-sex couples so as to channel births into marriage, it’s a pretty unsuccessful policy.

23. The procreation rationale is “a reversed-engineered theory.”

This is one of my favorite statements in the entire proceedings, because it captures in just one short sentence the logic behind the narrow laser-beam focused emphasis on procreation, to the exclusion of all the other reasons for why marriage is a good thing for individuals, families and society:

Hamilton: What it is, is a reverse-engineered theory to explain marriage in such a way that you avoid the logic of Lawrence and ignore a good deal of history about the institution of marriage, and provide this very narrow artificial rationale for it.

24. Wait a minute! I cry fowl! How can you do a Buzzfeed-style listical without any sponsored content?

Hi There,
My name is Jori Stevian, and I am the webmaster for drugnews.net. I happened across boxturtlebulletin.com, and after reading through your content, I would like to see if you would be open to collaborating. Since we target similar niches, I think we would be a good fit, and I would love to contribute an article or blog post.
Of course, if you are looking for something specific at this time, we would be happy to cater our submission to fit your current requirements.
Please let me know if this sounds like a beneficial opportunity for you, and I will send something over shortly.
Thanks,
Jori

No thanks, Jori. I get at least a half a dozen of these every day.

And so let’s review:

  • “You don’t know the answer.”
  • “It’s a matter of indifference to you.”
  • “Why do you want them to be worse off?”
  • “Come on now! You’re going in circles!”
  • “You’re not answering my question!”
  • “I don’t think you’re going to answer Judge Posner’s questions.”
  • “That is pathetic.”
  • “But it’s arbitrary.”
  • “We’ve been doing this stupid thing for a hundred years, a thousand 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.”
  • “Well that argument doesn’t get you very far.”
  • “You don’t seem to have any reasons.”
  • “It’s feeble.”
  • “It’s based on hate, isn’t it?”
  • “Look! Answer my question!”
  • “It (that yellow light) won’t save you.”
  • “You can’t guess?”
  • “You have no idea!”
  • “Why would fewer heterosexuals marry because homosexuals marry?”
  • “How can you brief when you don’t know anything?”
  • “It’s sort of like trying to focus on the mote in someone else’s eye while ignoring the beam in one’s own.”
  • “What it is, is a reverse-engineered theory.”

I don’t think I’m going out on a limb very much when I predict this will be a 3-0 decision in favor of marriage equality. And I am so looking forward to reading the opinion once it’s released.

Comments

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David in the O.C.
August 27th, 2014 | LINK

That’s a great recap. Thank you.

I love this quote:
Samuelson: I won’t disagree that historically homosexual persons have been the targets of discrimination. However, I won’t agree that that’s the basis for Wisconsin’s laws.

Of course he won’t admit that. Even though all three judges know that anti-gay hatred is the #1 reason these laws were passed.

The reverse engineering statement is also awesome. That is exactly what all of these states are doing to defend the obvious anti-gay animus that these amendments promote.

Gregory Peterson
August 27th, 2014 | LINK

Thank you for this…I very much appreciate what you’ve done here.

Steve
August 27th, 2014 | LINK

They didn’t go to the logical conclusion of the “marriage is only there to tie parents to their children” argument. It’s not to ban divorce, but to force people to get married. So if a couple accidentally gets pregnant, the state needs to force them into a shotgun wedding.

jutta
August 28th, 2014 | LINK

> I think Loving was a deviation from the commonwell rather than the codifying….

I think this should be “deviation from the Common Law”

jpeckjr
August 28th, 2014 | LINK

Thanks for this summary, Jim. I gasped about as much as I laughed. I gasped at the obvious lack of preparedness by the attorneys for the states.

It seems their argument is, essentially, we can’t allow homosexuals to marry because the heterosexuals have made such a mess of marriage, by getting pregnant when they didn’t mean to and getting divorced too easily.

Ben in Oakland
August 28th, 2014 | LINK

We can’t let belay people get married because straight people get divorced.

the judge got so CLOSE to asking the golden question, and Samuelson got so close to answering it. Why does marriage have to be defended from gay people getting married.

answer: well, if them hom’sekshals get married, heterosexuals won’t.

Just about answer he gave pretty much said that heterosexuals are people who fornicators, divorce, reproduce irresponsibly, don’t respect vows or paternity, and in general are pretty bad people who should not be allowed to get married, and if gay people can get married, heterosexuals will behave even worse.

I suspect that actually and baldly putting that out there would pretty much solve the problem for us.

Ben in Oakland
August 28th, 2014 | LINK

Sorry, not belay. Gay people.

Jim Burroway
August 28th, 2014 | LINK

RE: “I think this should be “deviation from the Common Law”

Thanks! I listed to that a dozen times but couldn’t quite figure it out.

jpeckjr
August 28th, 2014 | LINK

I am still gasping at the incompetence of Mr. Fisher and Mr. Samuelson. In every instance, they seem unprepared, lacking confidence in their own position, and unable to both understand the questions and craft any kind of response. I am assuming they are political appointees, but, still, they simply seem incompetent. Actually, in most of the cases involving marriage equality, the attorneys arguing against it have seemed incompetent to me.

Minz
August 28th, 2014 | LINK

Gay marriage bans must be really hard to defend competently, simply because there’s no logical argument for them (tradition isn’t logical!).

JohnAGJ
August 28th, 2014 | LINK

That was a VERY enjoyable read. Thank you!

Lucrece
August 28th, 2014 | LINK

I wonder if they were throwing the case on purpose…. how did they get through law school otherwise?

Boo
August 28th, 2014 | LINK

What would better preparation even look like? They’re making ridiculous arguments but what other arguments can they even make? It’s stammer through some complete BS or acknowledge animus.

tim
August 28th, 2014 | LINK

anti-gay-student backing

This is a rather cheap shot isn’t it? Posner didn’t “back” anti-gay students. He ruled correctly in a case that involved free speech.

MattNYC
August 28th, 2014 | LINK

The stupid–it burns. Whatever law schools granted degrees to these imbeciles must be rushing to delete them from their public records.

Did the judges ask still how trying to lasso “breeders” with a marriage has ANYTHING to do with whether a gay couple gets married or not? I was waiting to see that question. This does actually remind me of (sorry for blanking on names) the attorney and the expert witness pleading FOR Prop 8 who dejectedly admitted to Judge Walker that they couldn’t think of any harm to hetero marriages from same-sex marriages when he refused to let them escape that question.

Bork must have had a really bad day in Hell listening to his protege.

Patrick Hogan
August 29th, 2014 | LINK

You didn’t mention my favorite part — when the justices grilled the lawyers for the states on why they allow first cousins to marry only if over 65 or otherwise proven to be sterile (i.e.: if marriage is to channel all those heterosexual couples who might irresponsibly procreate into a stable relationship for more responsible procreation, why does the state carve out marriage rights for certain people explicitly known to be sterile).

The squirming was tangible.

Ben in Oakland
August 29th, 2014 | LINK

Charles cooper, Matt.

Who has since reversed himself on the marriage issue.

Hann
August 29th, 2014 | LINK

I don’t get the “yellow light” part / joke. Can someone explain?

Jim Burroway
August 29th, 2014 | LINK

Arguments before appeals courts and the US Supreme Courts are time-limited. I think a lot of courts have a warning light system to keep everything on track: a yellow light to signal that their time is almost up (I think in the Seventh Circuit it is a five-minute warning) and a red light when time is up. In these cases though, the judges apparently decided not to enforce the time limits. When Fisher was up, at one point he pointed out that he was getting the red light and still hadn’t said everything he wanted to say. Posner assured him he’d be given the time during rebuttal and continued quizzing Fisher for I think 5-10 minutes more.

Priya Lynn
August 29th, 2014 | LINK

Tim said “”anti-gay-student backing”

This is a rather cheap shot isn’t it? Posner didn’t “back” anti-gay students. He ruled correctly in a case that involved free speech.”.

Let’s say for the sake of argument that you are right and the judge “ruled correctly in a case that involved free speech”. That then does not mean he did not back an anti-gay student, he most certainly still did. The two statements are not necessarily incompatible. (And he decided incorrectly in a case involving student harrassment – there was no freedom of speech issue, students don’t have a right to harrass other students).

Sharon B
August 29th, 2014 | LINK

It really shows that beyond fear, hate, and tradition, they’ve got nuthin.

ZRAinSWVA
August 30th, 2014 | LINK

Jim, the summary you created obviously took a ton of time. Thank you. It is appreciated!

Alan Baker
August 31st, 2014 | LINK

After reading your great summary I’m thinking that those states (like Texas) who have yet to defend their anti-marriage laws on appeal must be at a loss since apparently hate, fear and tradition are not going to be enough.

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