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Posts for April, 2015

Maggies report card on Indiana

Timothy Kincaid

April 8th, 2015

Maggies report card on indiana

Maggie Gallagher has graded several potential Republican presidential contenders on their response to the Indiana FRFA brouhaha.

While Maggie highly regards those who wish Indiana to broadcast its antipathy towards its gay citizens, something I disavow, I think that this chart tells us something else, something useful. What this measures for me is the extent to which these potential candidates have their ear attuned to the nation’s current attitude on gay issues.

It would seem to me that those whom she grades lowest were the best capable of recognizing the quagmire the state had created and avoiding stepping in it.

So why all the corporate support?

Timothy Kincaid

April 2nd, 2015

Lately in our efforts to live in a nation in which our lives are treated and valued equally, we have come to rely on certain corporate advocates on our behalf.

For many years allies such as Wells Fargo and Levi Struass have made it clear that they welcomed gay customers and employees. Over time they were willing to help finance our causes and put their corporate name on the line. Then some tech world giants such as HP and Apple joined them, followed by Wall Street.

But no one, not on our side nor that of those who oppose equality, expected the loud, immediate, and very unanimous voice of Corporate America who demanded that Indiana and Arkansas not enact pro-discrimination provisions of their newly passed Religious Freedom Restoration Acts. This wasn’t just the usual somewhat-liberal companies, but CEO’s who had long Republican ties.

And not only did they demand change, they personally met with Republican leaders to be certain that the changes were adequate.

And let’s not fool ourselves. No progressive alliance, nor media demands, nor twitter storm changed these laws. They helped, of course. They created impetus. They undoubtedly put pressure on the Governors.

But only those who had connections and a history of contributions could walk in the door and tell the Republicans in the state legislatures that they were going to change their votes and do it now.

But why did they do it?

Some within Corporate America have very strong personal reasons for supporting the community – family, friends, those they care about. Others live in a world where diversity is respected. And undoubtedly, some were concerned about the impact that a negative image would have on the business in the states.

But I think it comes down to this: discrimination is a huge colossal pain in the ass for large businesses.

Most have gay employees who they value and need and they long ago got over the notion that it’s better moralize than make money. And anything that causes consternation in the workforce is bad for human resources. And unhappy human resources makes everyone tense. Which loses money and causes ulcers.

Frank Gilbreth proved decades ago that the single biggest contributor to productivity is the attitude of the employee. If employers show that they care about their employees, turn-over drops, production goes up and profits rise. So employers know that they have show that they are looking out for their gay employees – not just for their sake but for the other employees who are watching to see how committed they are.

And then there’s logistics.

It’s hard enough planning travel and accommodations for employees without worrying that Sanctimonious Joe’s Bed and Breakfast is going to make your keynote speaker at tomorrow’s conference sleep in her car. Or deciding where to order lunch if the Holy Memories Pizza is going to cancel on you because you have gay employees and they don’t support the homosexual lifestyle.

And what do you do with employee benefits like a gym membership or health discounts or even trivial things like winning the office raffle for a spa trip if you don’t know whether the businesses around you are going to hassle your employees because the gender of their spouse offends someone’s self-righteousness?

It’s one thing to have religious objections. Business people can work around the personal needs of others.

You need to be home by sundown on Fridays? We can do that. You need to be free Sunday mornings? Not a problem. You need a few minutes to face Mecca every day? Sure.

But it’s quite something else to pass a law whose unstated but unmissable intention is to invite discrimination. Because that’s going to cost time, energy, frustration, and money. That’s going to hurt some employees and cause hassle for others. That’s going to involve late night phone calls and interruption of golf games.

And that just won’t do.

Report: Indiana GOP Leaders Circulating Proposed Changes To License-To-Discriminate Bill

Jim Burroway

April 1st, 2015

The Indianapolis Star is reporting that Indiana GOP leaders are vetting a proposed deal with business leaders and the Governor that would explicitely state that the law couldn’t be used as a defense against anti-gay discrimination:

A copy of the language obtained by The Indianapolis Star was being presented to Gov. Mike Pence Wednesday morning. The measure would specify that the new religious freedom law cannot be used as a legal defense to discriminate against residents based on their sexual orientation.

The measure goes much further than a “preamble” that was proposed earlier in the week, explaining exactly what the RFRA law does. But it doesn’t go as far as establishing gays and lesbians as a protected class of citizens or repealing the law outright, both things that Republican leaders have said they could not support.

The clarification would say that the new “religious freedom” law does not authorize a provider – including businesses or individuals – to refuse to offer or provide its services, facilities, goods, or public accommodation to any member of the public based on sexual orientation or gender identity, in addition to race, color, religion, ancestry, age, national origin, disability, sex, or military service.

The proposed language exempts churches or other nonprofit religious organizations – including affiliated schools – from the definition of “provider.”

Democrats continue to call for full repeal of the state’s RFRA. The bill’s supporters, including the American Family Association of Indiana, the Indiana Family Institute, and Advance America, have not commented on the proposed changes. It’s also not clear how the proposed changes will go down with the Republican caucus in the legislature. They are due to meet tomorrow at noon to discuss the chagnes. Those reactions will be telling, considering all of the objections voiced by Pence and others that the bill somehow had nothing to do  with making super-doublely sure that discrimination against LGBT people would be perfectly legal.

Gov. Pence Calls For Changes In Indiana’s Right-To-Discriminate Law

Jim Burroway

March 31st, 2015

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This is what Indiana Gov. Mike Spence woke up to this morning: A a rare front-page editorial in the Indianapolis Star demanding that Pence and the state legislature “stop clinging to arguments about whether RFRA really does what critics fear; to stop clinging to ideology or personal preferences; to focus instead on fixing this.” Pence responded to that and other criticisms from business leaders around the country with a news conference today in which he 1) blamed his critics for spreading ” misunderstanding and confusion and mischaracterization” (while spreading a different kind of misunderstanding and mischaracterization himself; more on that in a moment), and 2) called for the legislature to implement unspecified “clarifications” to the law.

What those clarifications might be is anyone’s guess, and caution is in order. After all, the devil is always in the details, as Pence well knows as he mischaracterizes the very law he signed last Thursday. In this morning’s news conference, Pence doubled down on the claim that the law was nothing more than a state law mirroring the federal RFRA signed by President Clinton in 1993. Of course, the law’s supporters have already revealed the differences, as Rob Tisinai pointed out yesterday. Today, Sen. Chuck Schumer (D-NY), who is likely to become the next Senate Minority Leader, and who co-wrote the federal RFRA with Sen. Ted Kennedy (D-MA), blasted Pence’s mischaracterization on Facebook:

In the uproar over the recently passed Indiana Religious Freedom Restoration Act (RFRA), defenders of the bill like Indiana Gov. Pence are trying to hide behind the argument that the law “simply mirrors” the federal RFRA Sen. Ted Kennedy wrote and I introduced as a Congressman in 1993. That may be true only if you’re using a Funhouse mirror. In reality, it is completely false, and a disingenuous argument to boot; they should cease and desist immediately comparing the federal RFRA of 1993 to their present, misguided law.

There are two simple reasons the comparison does not hold water.

First, the federal RFRA was written narrowly to protect individuals’ religious freedom from government interference unless the government or state had a compelling interest. If ever there was a compelling state interest, it is to prevent discrimination. The federal law was not contemplated to, has never been, and could never be used to justify discrimination against gays and lesbians, in the name of religious freedom or anything else.

Second, the federal RFRA was written to protect individuals’ interests from government interference, but the Indiana RFRA protects private companies and corporations. When a person or company enters the marketplace, they are doing so voluntarily, and the federal RFRA was never intended to apply to them as it would to private individuals.

Because of these significant, legal differences, the Indiana RFRA in no way resembles the intent or application of the federal RFRA. As the signer of the bill, Governor Pence should put a stop to it immediately.

Garrett Epps at the Atlantic describes a key event which led Indiana to add private companies and corporations in its law:

The new Indiana statute also contains this odd language: “A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.” (My italics.) Neither the federal RFRA, nor 18 of the 19 state statutes cited by the Post, says anything like this; only the Texas RFRA, passed in 1999, contains similar language.

What these words mean is, first, that the Indiana statute explicitly recognizes that a for-profit corporation has “free exercise” rights matching those of individuals or churches. A lot of legal thinkers thought that idea was outlandish until last year’s decision in Burwell v. Hobby Lobby Storesin which the Court’s five conservatives interpreted the federal RFRA to give some corporate employers a religious veto over their employees’ statutory right to contraceptive coverage.

Second, the Indiana statute explicitly makes a business’s “free exercise” right a defense against a private lawsuit by another person, rather than simply against actions brought by government. Why does this matter? Well, there’s a lot of evidence that the new wave of “religious freedom” legislation was impelled, at least in part, by a panic over a New Mexico state-court decision, Elane Photography v. WillockIn that case, a same-sex couple sued a professional photography studio that refused to photograph the couple’s wedding. New Mexico law bars discrimination in “public accommodations” on the basis of sexual orientation. The studio said that New Mexico’s RFRA nonetheless barred the suit; but the state’s Supreme Court held that the RFRA did not apply “because the government is not a party.”

Remarkably enough, soon after, language found its way into the Indiana statute to make sure that no Indiana court could ever make a similar decision.  Democrats also offered the Republican legislative majority a chance to amend the new act to say that it did not permit businesses to discriminate; they voted that amendment down.

Pence nevertheless held firm in this morning’s news conference that the problem wasn’t with the law itself, but with “perception”:

But the governor, clearly exasperated and sighing audibly in response to questions, seemed concerned mostly with defending the law and the intent behind it, saying, “We’ve got a perception problem,” not one of substance. He referred to “gross mischaracterizations,” “reckless reporting by some in the media,” “completely false and baseless” accounts of the law, and “the smear that’s been leveled against this law and against the people of Indiana.”

“If this law had been about discrimination, I would have vetoed it,” he said. “I don’t believe for a minute that it was the intention of the General Assembly to create a license to discriminate, or a right to deny services to gays, lesbians or anyone else in this state, and that was not my intent, but I appreciate that that’s become the perception.”

Pence blames “reckless reporting,” but that “perception,” as he puts it, is largely attributable to two things: the text of the law itself, and Pence’s refusal four times to answer a straight up yes/no question on Sunday about whether an Indiana business can safely discriminate against a gay customer under the new law. And if he didn’t think it was about discrimination, then he didn’t pay much attention to the debate in the state legislature leading up to the votes, nor did he happen to notice those who stood behind him as his signed the bill into law. The Governor’s office refused to identify the people attending the private signing ceremony, but GLAAD did some of that work for them.

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Click to enlarge.

But when you get past his self-serving complaints today, Pence has appeared to have backed down. The Washington Post’s Paul Waldman calls that a “significant victory” for gay Hoosiers:

But the pressure Pence got from people both within Indiana and around the country has essentially forced him to be true to his word. Up until now, Pence has been saying that the law was not intended to give businesses in Indiana the right to discriminate against gay people. Now he’s saying that he wants to put that explicitly within the law itself. That’s a huge win for gay people who don’t want to be discriminated against, and makes it more likely that the next state that passes a law like this one — and there are similar bills pending in multiple states — will include a similar clarification.

Not only that, Pence went so far as to say, “No one should be harassed or mistreated because of who they are, who they love or what they believe. I believe it with all my heart.” The “who they love” part is not the kind of language one usually hears about LGBT people from Republicans, particularly those as conservative as Pence.

For me though, the devil will still be in the details. It’s unclear how Pence and the GOP-controlled legislature will “fix this thing” while holding to their vow not to add sexual orientation and gender identity to the state’s anti-discrimination laws. When asked about that this morning, Pence replied, “I’ve never supported that, and I want to be clear, it’s not on my agenda. I think it’s a completely separate question.”

Despite (or perhaps, because of) the controversy, Pence enjoys powerful support within the Republican party. A rash of potential (and one declared) presidential candidates have already strongly defended Indiana’s RFRA in its current form, including former Florida Gov. Jeb Bush, Florida Sen. Marco Rubio, Louisiana Gov. Bobby Jindal and Texas Sen. Ted Cruz.

Supporters (accidentally) reveal why the Indiana law is different

Rob Tisinai

March 30th, 2015

Supporters of Indiana’s “religious freedom” bill have dishonestly claimed it’s just like its cousins in federal law and 19 other states. But the irony of pushing a lie again and again is that your efforts might inadvertently uncover the truth. That’s exactly what happened with The Federalist’s article, “Meet 10 Americans Helped By Religious Freedom Bills Like Indiana’s.” It gives examples of people whose religious freedom was protected from senseless government intrusion, like:

  • Native American children who wanted to keep their hair long, despite school policy,
  • A Jewish prisoner denied Kosher meals, and
  • A religious non-profit that “provides housing and religious instruction to petty offenders released from state prisons,” but was threatened by a new city ordinance.

It’s a great list. These are everyday people, often in powerless situations, who simply want to live according to their beliefs without harming anyone. But it’s a bad list, too, because far from showing how the Indiana law is just like the others, it actually highlights two key differences.

1.  No one was harmed by the free exercise of religion in these cases.

Long hair, kosher  meals — no one can claim real harm from such things, nothing they could prove in court, at least. And if some private individual had been harmed, they could have sued, because the federal Religious Freedom Restoration Act (and most state RFRAs) doesn’t offer protection against suits brought by private individuals.

But the Indiana law is different. It provides exactly that sort of protection. It’s what this part of the law means:

A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.

I emphasized the key bit. Other laws don’t contain this. Other laws require the government to be part of the action before you can invoke an RFRA defense. But if I, as a private citizen, can show you’ve harmed me — say, by firing me from a job or denying me housing or services — then I can bring suit on my own and you can’t invoke an RFRA in your defense. In Indiana, though…you can.

I hope that doesn’t seem trivial. Consider: when only the government is involved, when no one can actually prove harm (as in the cases above), there’s a good chance the intrusion on religious freedom really is pointless, and it makes sense to protect against it. But when it goes beyond the government, when your free exercise is harming those around you to the degree that they can prove damages in court, then you’re just claiming a special religious right to hurt people. And is that what we want religious freedom to be?

2. None of the people or group protected were for-profit organizations.

Our hearts and minds go out to the people on this list because they have a personal conscience or (in the case of the halfway house) their entire existence is centered on religious conviction. That isn’t generally true of for-profit businesses (and certainly not at a place like Exxon, for instance, which for years refused to include gay people in it nondiscrimination policy). That’s why most RFRAs only protected individuals — actual living humans — and religious groups. This may have changed with the Supreme Court’s Hobby Lobby decision, but it was never the intent of the people who passed those laws.

But the Indiana law is different. It explicitly includes things like a “partnership, a limited liability company, a corporation,a company, a firm, a society, a joint-stock company…regardless of whether the entity is organized and operated for profit or nonprofit purposes.” Sure, you’ll need to show the individuals involved “have control and substantial ownership of the entity,” but, hey, that’s what legal departments are for. This is an enormous expansion, and whether you think it’s justified or not, you can’t claim it’s just like all the other RFRAs that have been around for years.

This all takes us far away from where we started: Powerless individuals and constitutionally-protected religious groups who want to live their lives and fulfill their missions while doing harm to no one. We end up with a whole new arena filled with for-profit businesses that have a new, potentially potent defense they can invoke as convenient when they do harm. It’s just like in the Bible, except in this bizarro version, Jesus is on the side of the money-lenders.

More Proof: They Really Want To Discriminate Against You, Eight Times Over

Jim Burroway

March 30th, 2015

Indiana Gov. Mike Pence (R) went into full damage control yesterday with an appearance on ABC’s “This Week.” George Stephanopoulos asked Pence straight up four times whether an Indiana florist is allowed to discriminate under Indiana’s new law, and six times Pence would not give an answer.

If anyone is asked whether a business is allowed to discriminate four times and he refuses to give answer  four times, you can safely take that answer as a yes. You can be doubly assured of that because Stephanopoulos asked four more questions about whether Pence would pursue protections for LGBT Hoosiers. Pence was a bit more direct about that. That answer is no.

Here’s the Proof: They Really Do Want to Discriminate Against You

Jim Burroway

March 27th, 2015

I’ve been missing in action the past few months, working ten to eleven hour days at work and having just about every other minute outside of work consumed by other things. This pace is likely to continue at least through May. So I haven’t been able to keep up with the slew of right-to-discriminate bills making their appearance in state legislatures across the country as part of a larger backlash against an anticipated Supreme Court ruling sometime this summer on marriage equality. Some of that backlash is comical, like Oklahoma’s deciding not to marry straight people if gays can marry. Other examples are far more sinister, like Indiana’s sweeping law that gives any Indiana business or individual license to discriminate against anyone — including Africa-Americans, Jews, Catholics, Muslims, women, foreigners, and LGBT people. In fact, Indiana’s law is so sweeping that it allows anyone to violate any law unless there is a “compelling governmental interest… of the highest magnitude,” which I guess may exclude most felonies, although the wording of the bill doesn’t exactly make that clear.

Despite intense lobbying by business leaders, Gov. Mike Pence (R) signed the bill into law while protesting that “This bill is not about discrimination, and if I thought it legalized discrimination in any way I would’ve vetoed it.” But of course, you know as well as I do that all of these bills making their way through state legislatures are precisely about discrimination. And here’s the proof.

A similar right to discriminate bill was making its way through the Georgia House this week. It actually passed the House Judiciary Committee yesterday, but not before an amendment was added by State Rep. Mike Jacobs (R-Brookhaven), who opposed the bill:

“I take at face value the statements of the proponents that they do not intend discrimination with this bill but I also believe that if that is the case, we should state that expressly in the bill itself. That is what the amendment does.”

Jacobs’s amendment added language to explicitly prevent “discrimination on any ground prohibited by federal, state or local law.” Bill supporter Rep. Barry Flemming (R-Harlem) complained that “This is the amendment that will gut this bill.” Which, of course, it does. And the reason that an anti-discrimination clause “guts” a bill that is “not about discrimination” is because you simply can’t get around the fact that, despite the Indiana Governor’s protest, discrimination really is the whole point of the bill! And so Flemming announced that if there is an amendment that says the bill would not allow discrimination, he would no longer support it.

So let me emphasize this: he would not longer support a bill that reiterated that the bill was not about discrimination. Because if a bill says it’s not going to allow discrimination, then he considers that bill toxic. So toxic that after three Republicans on the committee joined six Democrats to approve the amendment, Flemming offered a motion to table the amended bill. The motion passed.

The Georgia bill appears to be gravely wounded, although just about anything can still happen in the final days of the legislative session. But along the way, the true colors of these bills’ supporters have been revealed. They will tell you that it’s not about discrimination, but when you get language prohibiting discrimination into the bill, they can’t support it. What more do you need to know?

Marriages Have Begun

Jim Burroway

October 6th, 2014

In Indiana:

Katie Burris, left, and Evangeline Cook are all smiles after they walk away with their marriage license, at the Marion County Clerk's office in the City/County building, Monday, October 6, 2014. (via Indianapolis Star)

“Katie Burris, left, and Evangeline Cook are all smiles after they walk away with their marriage license, at the Marion County Clerk’s office in the City/County building, Monday, October 6, 2014.” (via Indianapolis Star)

The Marion County Clerk’s Office and other counties have begun issuing marriage licenses for same-sex marriages.

…”Defending Indiana’s statute at trial and on appeal was our duty as attorney for our state government and was necessary,” said Indiana Attorney General Greg Zoeller. “Our legal system is based on the bedrock principle that both sides in a dispute will be zealously represented by counsel who will advocate for their clients so that the courts can weigh the arguments and decide. Our constitutional process for testing the validity of statutes worked as intended, and Indiana’s legal defense has been conducted with civility and respect for all sides and within existing resources.”

In Oklahoma:

Mary Bishop and Sharon Baldwin — the Tulsa County couple that filed a federal challenge to Oklahoma’s ban a day after it was approved by voters in 2004 — were among the first couples to get a license. In Oklahoma County, the first couple to get a license was Lauren Marie Tidwell and Sara Michelle Yarbrough.

Which, of course, has political leaders upset:

Tulsa County Court Clerk Sally Howe Smith, who defended Oklahoma’s marriage ban after denying a license to Bishop and Baldwin, was represented by the Arizona-based legal group Alliance Defending Freedom.

Byron Babione, senior counsel for the group, said, “The court’s decision not to take up this issue now means that the marriage battle will continue. Several federal courts — including those in the 5th, 6th, 8th, and 11th circuits — still have cases working their way to the Supreme Court. (Alliance Defending Freedom) will continue to remain a leader in the critical effort for the freedom of the people. The people should decide this issue, not the courts.”

Oklahoma Gov. Mary Fallin and Oklahoma Attorney General Scott Pruitt also criticized the court’s inaction.

“The will of the people has now been overridden by unelected federal justices, accountable to no one,” Fallin said. “That is both undemocratic and a violation of states’ rights. Rather than allowing states to make their own policies that reflect the values and views of their residents, federal judges have inserted themselves into a state issue to pursue their own agendas.”

In Utah:

"Kelli Frame, left, and Suzanne Marelius become the first same-sex couple to apply for a marriage license at the Salt Lake County Complex on Monday morning." (via Salt Lake City Tribune)

“Kelli Frame, left, and Suzanne Marelius become the first same-sex couple to apply for a marriage license at the Salt Lake County Complex on Monday morning.” (via Salt Lake City Tribune)

Salt Lake County District Attorney Sim Gill said marriage licenses would be immediately issued to same-sex couples.

“Not to issue one would be a violation of the 10th Circuit’s mandate and a violation of these couples’ constitutional rights,” Gill told The Salt Lake Tribune. “We’ve given the go-ahead to begin issuing [marriage] licenses right away.”

Gov. Gary Herbert said at a news conference that he sent a letter to his cabinet members ordering them to recognize all legally performed marriages, that gay couples can follow the same process as everyone else to get benefits.

“We are a nation of laws and we here in Utah, we’ll uphold the law,” Herbert said.

In Virginia:

Nicole Pries, Lindsey Oliver

Thirty-year-old Lindsey Oliver and 42-year-old Nicole Pries received the first same-sex marriage license issued from the Richmond Circuit Court Clerk’s office shortly after 1 p.m. Monday.

Upon leaving the courthouse, they were married by gay-rights advocate The Rev. Robin Gorsline.

The couple said Monday also was the anniversary of a commitment ceremony they held on a North Carolina beach three years ago.

And soon, in Wisconsin:

Speaking to reporters after a campaign event at a farm here, GOP Gov. Scott Walker said the state was abandoning its fight to keep its same-sex marriage ban.  … Asked if the U.S. Constitution should be amended to ban same-sex marriage, Walker downplayed the notion, saying, “I think it’s resolved.”

“For us, it’s over in Wisconsin,” Walker said of the fight over gay marriage. “Others will have to talk about the federal level.”

The Most Momentous Supreme Court Non-Decision Ever Made

Jim Burroway

October 6th, 2014

EqualityChart

With today’s Supreme Court non-decision, about 53% of all Americans now live in jurisdictions with marriage equality. That’s twenty-four states and the District of Columbia. Indiana, Oklahoma, Virginia, Wisconsin and Utah will open their clerk offices to same-sex couples as soon as the various Federal District Courts go through their formalities. Those formalities are already out of the way in Colorado, Oklahoma, Virginia and Utah. Things are happening so fast I wouldn’t be surprised if Indiana gets the go-ahead before I finish writing this post. Meanwhile, you can expect that Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming will follow suit any day now, since they too are now bound by the decisions already handed down in the in the 4th Circuit, 7th Circuit, and 10th Circuit Courts of Appeals.

The biggest wild card remains the Sixth Circuit, which heard oral arguments last August in a Michigan challenge to that state’s constitutional amendment banning same-sex marriage. That court also heard oral arguments from four other states — Ohio, Kentucky and Tennessee — challenging those states’ bans on recognizing legal marriages from out of state. If the Sixth Circuit goes all contrarian and upholds any of those bans, then we could expect the issue to be dropped once again at the Supreme Court’s footsteps.

And to think that barely over a decade ago, our relationships were still criminalized in fourteen states.

Now, it’s possible that the three-judge panel in Cincinnati may rule against marriage equality. It’s also conceivable that a three-judge panel in the Fifth, Eighth and Eleventh Circuits could uphold a same-sex marriage ban in, say, Louisiana, for example.

But if one did, it seems much more likely that the entire circuit would step in for an en banc decision. But even if that didn’t happen, then sure, maybe an anti-equality decision could conceivably make its way to the U.S. Supreme Court. But by then, some two-thirds or more of all Americans are likely to be living in marriage equality states. Would the Supreme Court go back and overturn all of that? That now seems preposterous. Today’s non-decision is the new law of the land.

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.
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Please let me know if this sounds like a beneficial opportunity for you, and I will send something over shortly.
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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.

Seventh Circuit hearing suggests a favorable ruling

Timothy Kincaid

August 26th, 2014

The Seventh Circuit Court of Appeals heard testimony today as to whether the bans on same-sex marriage in Indiana and Wisconsin violate the US Constitution. To say that it did not go well for those supporting the bans would be an understatement.

Here are the recording of the arguments in the Indiana case and the Wisconsin case (sound only).

By far the least tolerant of the states’ arguments was Judge Richard Posner, who at one point asked Indiana’s counsel, “is there any empirical evidence for anything you are saying?” His chief point, which he reiterated several times, is that if you wish to set policy so as to benefit children who may be born by accident (the argument of the state), then surely it benefits them when the same-sex couple who adopts them gets married.

However, Posner – appointed by President Reagan in 1981 – may not be easy to dismiss as a “radical judge ruling from the bench and pushing a homosexual agenda”. 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.

UPDATE: I just noticed that Rob – who shares my amusement with the hearing – beat me to the post. I don’t have Vicodin or a detached retina to blame. Sorry.

A few of my favorite things

Rob Tisinai

August 26th, 2014

Maybe it’s just because I’m on Vicodin (details below, not for the squeamish), but it’s delicious to listen to the 7th Circuit judges ask Indiana’s attorney general why he wants the adopted children of same-sex couples to be worse off than the adopted children of opposite-sex couples.

Actually, deliciousness is in effect during the whole grilling (and by grilling, I mean holding the AG’s arguments so close to the flame they end up with burn marks!). It comes both from hearing the AG stumble over his words, and also the constant incredulity in the voices of the judges. The brutality starts almost immediately. One of my is when a judge asks the AG for evidence to support a silly argument. The AG says it’s “self-evident” and the judge replies:

Self-ev — I regard it as absurd. You say it’s self-evident. [laughter in the courtroom]

Definitely worth a listen.

About the Vicodin: I had emergency (in-patient) surgery yesterday to fix a retinal detachment. First the doctor plunged a cryogenic probe into my eyeball to freeze the retina back in position by creating scar tissue. Then he pushed a syringe into my eye to inject a gas bubble that applies pressure to hold the retina in place and force out unwanted fluid.

Hence the Vicodin.

At least one marriage in Indiana will be recognized

Timothy Kincaid

July 2nd, 2014

amy and nikiLast Wednesday, Federal District Judge Richard Young ruled that Indiana’s ban on same-sex marriages violates the due process and equal protection clauses of the US Constitution. After several marriages took place, on Friday the Seventh Circuit Court of Appeals stayed the ruling until appeal can be heard.

The status of the marriages that took place in the interim is uncertain. But one couple’s marriage has caught the attention of the courts and merited special treatment.

Earlier this year, before determining the constitutionality of the law, Judge Young had made an emergency ruling on the marriage of one couple, Amy Sandler and Niki Quasney. Quasney has been fighting ovarian cancer for five years and may not be able to continue the battle until after the legal process has been completed.

When the Seventh Circuit stayed Judge Young’s marriage rulings, it put Sandler’s and Quasney’s marriage back in limbo. But, as did Young, the Appeals Court has recognized the severity of the situation and made exception. (IndyStar)

The U.S. 7th Circuit Court of Appeals has ordered the state to recognize the same-sex marriage of one Hoosier couple.

Tuesday’s ruling came at the request of Amy Sandler and Niki Quasney, who is terminally ill. They are among the couples who had filed lawsuits earlier this year challenging the state law than bans same-sex marriage and the recognition of gay marriages conducted legally in other states.

A three-judge panel from the federal appeals court in Chicago ordered the unique recognition for the Munster couple a day after it announced plans to expedite the appeal of U.S. District Judge Richard Young’s ruling last week that found Indiana’s ban unconstitutional.

This is an act of mercy. But it also tells us something of the mind of the court.

Yesterday’s ruling gives a clear indication that at least this panel of judges expects that marriage equality has proven its merits and will prevail at the Circuit Court level.

I am also beginning to wonder if the Supreme Court will even hear the matter of marriage. Should all of the Circuit Courts come to identical conclusion, which seems increasingly likely, there would be no legal conflict nor perhaps a need for SCOTUS to take up the issue.

The First Indiana Same-Sex Wedding

Jim Burroway

June 25th, 2014

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From the Indianapolis Star:

Craig Bowen and Jake Miller were the first couple to get their marriage license and be married in Indianapolis.

The ruling left other county clerks trying to figure out how to respond. The Hamilton County clerk decided not to immediately issue licenses, while the clerk in Monroe County went ahead.

Hamilton County encompases Indianapolis’s northern suburbs, while Monroe County includes Bloomington and the University of Indiana.

Indiana’s Marriage Ban Struck Down; Marriages Can Begin Immediately

Jim Burroway

June 25th, 2014

Yup. As Timothy said, you can add Indiana to the list. Here’s the details. Federal District Judge Richard Young has ruled that Indiana’s ban on same-sex marriage runs afoul of the U.S. Constitution’s due process and equal protection clauses. And becaue Judge Young didn’t issue a stay, his ruling takes effect immediately. The county clerck in Indianapolis (Marion County) has already announced that they are issuing marriage licenses.

Indiana’s marriage ban is governed by state statute and not a constitutional amendment. Efforts to amend the state constitution have stalled in the Indiana legislature. In Judge Young’s 36-page ruling (PDF: 161KB/36 pages), neither party got everything they asked for. But the plaintiffs got all of the most important things they sought. In the process, Judge Young turned to Loving V. Virginia to rule that marriage was a fundamental right under the Fourteenth Amendment’s Due Process Clause:

The court agrees with Plaintiffs. “Fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights.” In re Marriage Cases, 183 P.3d 384, 430 (Cal. 2008) (superseded by constitutional amendment). In fact, “the history of our Constitution . . . is the story of the extension of constitutional rights and protections to people once ignored or excluded.” United States v. Virginia, 518 U.S. 515, 557 (1996). The reasoning in Henry v. Himes is particularly persuasive on this point:

The Supreme Court has consistently refused to narrow the scope of the fundamental right to marry by reframing a plaintiff’s asserted right to marry as a more limited right that is about the characteristics of the couple seeking marriage. . . [T]he Court consistently describes a general ‘fundamental right to marry’ rather than ‘the right to interracial marriage,’ ‘the right to inmate marriage,’ or ‘the right of people owing child support to marry.’

No.1:14-cv-129, 2014 WL 1418395, *7 (S.D. Ohio Apr. 14, 2014) (emphasis added) (citing Loving, 388 U.S. at 12; Turner v. Safley, 482 U.S. 78, 94-96 (1987); Zablocki, 434 U.S. at 383-86).

The court finds Loving v. Virginia best illustrates that concept. In that case, the Court held that Virginia’s ban on interracial marriage violated the plaintiffs’ rights under the Due Process Clause. 388 U.S. at 12. The Loving Court stated “[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,” and further recognized that, “marriage is one of the ‘basic civil rights of man.’” Id. If the Court in Loving had looked only to the “traditional” approach to marriage prior to 1967, the Court would not have recognized that there was a fundamental right for Mildred and Richard Loving to be married, because the nation’s history was replete with statutes banning interracial marriages between Caucasians and African Americans. Notably, the Court did not frame the issue of interracial marriage as a “new” right, but recognized the fundamental right to marry regardless of that “traditional” classification.

Judge Young also found that Indiana’s marriage laws were subject to strict scrutiny when judging Indiana’s marriage law under the Due Process Clause, which means that the burden to show that the law was constitutional rests with the state, and not the plaintiffs. He then ruled that the state failed to prove that the state’s marriage laws protected the state’s interest in promoting procreation:

Defendants have failed to show that the law is “closely tailored” to that interest. Indiana’s marriage laws are both over- and under-inclusive. The marriage laws are under-inclusive because they only prevent one subset of couples, those who cannot naturally conceive children, from marrying. For example, the State’s laws do not consider those post-menopausal women, infertile couples, or couples that do not wish to have children. Additionally, Indiana specifically allows first cousins to marry once they reach the age that procreation is not a realistic possibility. …

On the other hand, Indiana’s marriage laws are over-inclusive in that they prohibit some opposite-sex couples, who can naturally and unintentionally procreate, from marriage. For example, relatives closer in degree than second cousins can naturally and unintentionally procreate; however, they still may not marry. Most importantly, excluding same-sex couples from marriage has absolutely no effect on opposite-sex couples, whether they will procreate, and whether such couples will stay together if they do procreate. Therefore, the law is not closely tailored, and the Defendants have failed to meet their burden.

While Judge Young held that Indiana’s marriage law was subject to strict scrutiny for Due Process claims, he also ruled, on a technicality, that Equal Protection claims are still subject to rational basis, although “The court agrees with Plaintiffs that it is likely time to reconsider this issue, especially in light of the Ninth Circuit’s decision in SmithKline Beecham Corp. v. Abbott Labs, …(interpreting Windsor to mean that gay and lesbian persons constitute a suspect class).” This means that the burden of proof rests with the plaintiffs in arguing that Indiana’s same-sex marriage ban violates the Equal Protection clause. He then ruled that the plaintiffs met that challenge:

The court finds that there is no rational basis to exclude same-sex couples. The purpose of marriage -– to keep the couple together for the sake of their children –- is served by marriage regardless of the sexes of the spouses. In order to fit under Johnson’s rationale, Defendants point to the one extremely limited difference between opposite-sex and same-sex couples, the ability of the couple to naturally and unintentionally procreate, as justification to deny same-sex couples a vast array of rights. The connection between these rights and responsibilities and the ability to conceive unintentionally is too attenuated to support such a broad prohibition. See Romer, 517 U.S. at 635.

Furthermore, the exclusion has no effect on opposite-sex couples and whether they have children or stay together for those children. Defendants proffer no reason why excluding same-sex couples from marriage benefits opposite-sex couples. The court concludes that there simply is no rational link between the two.

Judge Young also ruled that Indiana’s prohibition on recognizing out-of-state same-sex marriages also violates the Equal Protection Clause.

Noting the unanimity of other Federal District Court decisions since the U.S. Supreme Court’s Windsor v. US decision last summer, Judge Young concluded:

The court has never witnessed a phenomenon throughout the federal court system as is presented with this issue. In less than a year, every federal district court to consider the issue has reached the same conclusion in thoughtful and thorough opinions – laws prohibiting the celebration and recognition of same-sex marriages are unconstitutional. It is clear that the fundamental right to marry shall not be deprived to some individuals based solely on the person they choose to love. In time, Americans will look at the marriage of couples such as Plaintiffs, and refer to it simply as a marriage – not a same-sex marriage. These couples, when gender and sexual orientation are taken away, are in all respects like the family down the street. The Constitution demands that we treat them as such. Today, the “injustice that [we] had not earlier known or understood” ends. Windsor, 133 S. Ct. at 2689 (citing Marriage Equality Act, 2011 N.Y. Laws 749). Because “[a]s the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Lawrence, 539 U.S. at 579.

The state attorney general’s office has already announced that they will appeal the ruling.

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