Seventh Circuit slaps down gay marriage bans

Timothy Kincaid

September 4th, 2014

Well that was quick!

Just last week Justices Williams, Hamilton, and Posner heard oral argument as to why the states of Wisconsin and Indiana could ban marriage between same-sex couples without violating their constitutional rights. Today they’ve released their ruling and, to no one’s surprise, they unanimously agree that anti-gay marriage bans are unconstitutional.

They didn’t exactly pull punches.

Our pair of cases is rich in detail but ultimately straight-forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously.

The justices found that a ‘more than reasonable basis” review was required because discrimination against a minority makes a law “constitutionally suspect”. Nevertheless, not even a rational basis was provided.

They found that these laws violate the equal protections promises of the constitution and, as it was unnecessary, chose not to prove other possible violations.

Interestingly, the court seemed to find merit in the theories that homosexuality is a form of natural selection by which a small percentage of a population is not naturally procreative, thus freeing that subgroup to provide supplemental care for the children of procreative relatives. This may speak to the motivation of Posner’s repeated questions about the harm to children adopted by same-sex couples.

And it forms much of the ruling:

Married homosexuals are more likely to want to adopt than unmarried ones if only because of the many state and federal benefits to which married people are entitled. And so same-sex marriage improves the prospects of unintended children by increasing the number and resources of prospective adopters. Notably, same-sex couples are more likely to adopt foster children than opposite-sex couples are.

Also, the more willing adopters there are, not only the fewer children there will be in foster care or being raised by single mothers but also the fewer abortions there will be. Carrying a baby to term and putting the baby up for adoption is an alternative to abortion for a pregnant woman who thinks that as a single mother she could not cope with the baby. The pro-life community recognizes this.

I love the reference to the pro-life community. It’s reminding them that their biases are hurting themselves as well.

Finally, they concluded:

To return to where we started in this opinion, more than unsupported conjecture that same-sex marriage will harm heterosexual marriage or children or any other valid and important interest of a state is necessary to justify discrimination on the basis of sexual orientation. As we have been at pains to explain, the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.

Ben in oakland

September 4th, 2014

TOTALLY IMPLAUSIBLE!”

Judge posner, I’d marry you in a minute just for that.

Mark F.

September 4th, 2014

“Interestingly, the court seemed to find merit in the theories that homosexuality is a form of natural selection by which a small percentage of a population is not naturally procreative, thus freeing that subgroup to provide supplemental care for the children of procreative relatives.”

Unfortunately, this argument is without merit. There is no evidence that gays are more nurturing to relatives than straights. It’s merely speculation with no actual evidence. And non-reproducing gays would have to save the lives of at least 2 siblings or 4 nephews and nieces for homosexuality to be evolutionarily adaptive. That is clearly absurd.

Also, the hereditability of homosexuality is only about .25. In other words, gay identical twins only share their sexual orientation with their twin about 25% of the time. This is rather low for an alleged hereditable trait.

Still, a pretty good opinion.

iDavid

September 4th, 2014

Timothy,

Would you mind flushing out the history and the current state of Stays in both states and who granted them?
I can’t get a clear picture from more than 10 articles I have read, what the current status is of either of the two states regarding getting married today upon todays ruling.

Thx

Ben in oakland

September 4th, 2014

Mark– you might want to look up sociobiology.

jpeckjr

September 4th, 2014

Important point: the court refers to sexual orientation as “an immutable characteristic.”

The question of whether sexual orientation is an immutable characteristic or a chose behavior is the primary dividing line between those who support equality and those who do not.

On the natural selection question, the court’s speculation is interesting and there may be some scientific research to support it, but I think it is too speculative for a legal opinion.

Finally, can we please stop talking about the children? I realize that SCOTUS ultimately has to rule on whether marriage is a fundamental right that must be extended to all persons regardless of the gender of the one they are marrying.

But the question that seems to be emerging is “Do children have a fundamental right to being wanted and then raised by responsible parents?”

Certainly seems to be the question equality opponents are answering.

Hunter

September 5th, 2014

Mark: Add to that The Insect Societies, in which Wilson first formulates the idea of kin selection.

And note that kin selection is not just about gay men and lesbians in contemporary America, and it’s not just about homosexuality: evidence of it is found among social animals from bees to wolves.

Hunter

September 5th, 2014

Note to my previous comment: I did some checking, and while Wilson was my first exposure to the idea, it seems that Darwin broached the subject in “The Origin of Species.”

jpeckjr: kin selection is hardly speculative at this point: there are a wealth of examples among social animals; it’s well accepted as a mechanism that does confer an evolutionary advantage — not to the individual, but to his or her genetic heritage.

We have to deal with the children because that is the basis of the arguments the states are advancing. We and the courts have to deal with the issues presented.

Timothy Kincaid

September 5th, 2014

Mark F.

I believe that you have your twin stats incorrect.

First, the vast overwhelming percent of identical twins share the same orientation: straight. (But I knew what you meant)

As to those who are gay, I believe that the rate is that if one monozygotic (identical) twin is gay, the other is also gay about 50% of the time. Gay dizygotic (fraternal) twins have a concurrence rate of about 25%.

Nevertheless, it would appear that pure heredity is not (or not always) the sole contributor to homosexual orientation.

IDavid,

That is really a great idea and I will try to get to it soon.

The Lauderdale

September 5th, 2014

I ran a Google search of NOM’s blog for mentions of Richard Posner:

site:http://www.nomblog.com/ “posner”

They’ve mentioned him on at six separate occasions, always in ways supportive of their cause, but can’t see where they’ve mentioned him more recently than back in July.

Priya Lynn

September 5th, 2014

Mark said “There is no evidence that gays are more nurturing to relatives than straights.”.

Seems to me I’ve heard there is.

iDavid

September 6th, 2014

Hi Timothy,

Thanks.

Finally I found both states current gay marriage status in the Milwaukiee Wisconsin Journal Sentinel. It seems both states have 21 days before marriage goes into effect with a possible US Supreme Court Appeal and Stay being petitioned for during that time. It doesn’t seem either has been petitioned for yet.

http://www.jsonline.com/news/statepolitics/court-throws-out-wisconsins-and-indianas-gay-marriage-bans-b99344862z1-273993541.html

Leave A Comment

All comments reflect the opinions of commenters only. They are not necessarily those of anyone associated with Box Turtle Bulletin. Comments are subject to our Comments Policy.

(Required)
(Required, never shared)

PLEASE NOTE: All comments are subject to our Comments Policy.

 

Latest Posts

The Things You Learn from the Internet

"The Intel On This Wasn't 100 Percent"

From Fake News To Real Bullets: This Is The New Normal

NC Gov McCrory Throws In The Towel

Colorado Store Manager Verbally Attacks "Faggot That Voted For Hillary" In Front of 4-Year-Old Son

Associated Press Updates "Alt-Right" Usage Guide

A Challenge for Blue Bubble Democrats

Baptist Churches in Dallas, Austin Expelled Over LGBT-Affirming Stance

Featured Reports

What Are Little Boys Made Of?

In this original BTB Investigation, we unveil the tragic story of Kirk Murphy, a four-year-old boy who was treated for “cross-gender disturbance” in 1970 by a young grad student by the name of George Rekers. This story is a stark reminder that there are severe and damaging consequences when therapists try to ensure that boys will be boys.

Slouching Towards Kampala: Uganda’s Deadly Embrace of Hate

When we first reported on three American anti-gay activists traveling to Kampala for a three-day conference, we had no idea that it would be the first report of a long string of events leading to a proposal to institute the death penalty for LGBT people. But that is exactly what happened. In this report, we review our collection of more than 500 posts to tell the story of one nation’s embrace of hatred toward gay people. This report will be updated continuously as events continue to unfold. Check here for the latest updates.

Paul Cameron’s World

In 2005, the Southern Poverty Law Center wrote that “[Paul] Cameron’s ‘science’ echoes Nazi Germany.” What the SPLC didn”t know was Cameron doesn’t just “echo” Nazi Germany. He quoted extensively from one of the Final Solution’s architects. This puts his fascination with quarantines, mandatory tattoos, and extermination being a “plausible idea” in a whole new and deeply disturbing light.

From the Inside: Focus on the Family’s “Love Won Out”

On February 10, I attended an all-day “Love Won Out” ex-gay conference in Phoenix, put on by Focus on the Family and Exodus International. In this series of reports, I talk about what I learned there: the people who go to these conferences, the things that they hear, and what this all means for them, their families and for the rest of us.

Prologue: Why I Went To “Love Won Out”
Part 1: What’s Love Got To Do With It?
Part 2: Parents Struggle With “No Exceptions”
Part 3: A Whole New Dialect
Part 4: It Depends On How The Meaning of the Word "Change" Changes
Part 5: A Candid Explanation For "Change"

The Heterosexual Agenda: Exposing The Myths

At last, the truth can now be told.

Using the same research methods employed by most anti-gay political pressure groups, we examine the statistics and the case studies that dispel many of the myths about heterosexuality. Download your copy today!

And don‘t miss our companion report, How To Write An Anti-Gay Tract In Fifteen Easy Steps.

Testing The Premise: Are Gays A Threat To Our Children?

Anti-gay activists often charge that gay men and women pose a threat to children. In this report, we explore the supposed connection between homosexuality and child sexual abuse, the conclusions reached by the most knowledgeable professionals in the field, and how anti-gay activists continue to ignore their findings. This has tremendous consequences, not just for gay men and women, but more importantly for the safety of all our children.

Straight From The Source: What the “Dutch Study” Really Says About Gay Couples

Anti-gay activists often cite the “Dutch Study” to claim that gay unions last only about 1½ years and that the these men have an average of eight additional partners per year outside of their steady relationship. In this report, we will take you step by step into the study to see whether the claims are true.

The FRC’s Briefs Are Showing

Tony Perkins’ Family Research Council submitted an Amicus Brief to the Maryland Court of Appeals as that court prepared to consider the issue of gay marriage. We examine just one small section of that brief to reveal the junk science and fraudulent claims of the Family “Research” Council.

Daniel Fetty Doesn’t Count

Daniel FettyThe FBI’s annual Hate Crime Statistics aren’t as complete as they ought to be, and their report for 2004 was no exception. In fact, their most recent report has quite a few glaring holes. Holes big enough for Daniel Fetty to fall through.