LA Times calls for marriage equality
September 2nd, 2014
The editorial staff of the Los Angeles Times penned an editorial calling on the Supreme Court to rule marriage bans unconstitutional.
The Supreme Court often will allow a constitutional issue to percolate for some time and step in only when federal appeals courts disagree. So far that hasn’t happened with the issue of same-sex marriage, but the justices should move quickly anyway. The legal issues have been amply developed and debated. It’s now time for the nation’s highest court to rule unambiguously that gay couples are equal under the law.
Coahuila legislature votes in marriage equality
September 2nd, 2014
The Congress of Coahuila, a northern state in Mexico, approved same sex marriages on Monday.
The legislators modified more than 40 articles of the State’s Civil Law to give all the rights and obligations of a heterosexual marriage to homosexual couples.
Before the reform, marriage in the state was defined as the union of a man and a woman in order to procreate.
With the changes, the article now states that marriage is “the union between two people with the possibility of procreating or adopting.” said the local congressman that promoted the reform, Samuel Acevedo, according to EFE news agency.
Coahuila is the first of Mexico’s 31 states to enact marriage equality. The Federal District acted similarly in 2009, and in 2011 in the state of Quintana Roo, a local judge pointed out that the local law made no mention of the gender of marriage participants. And two other states are part way through a lengthy judicial process which would find the ban on same-sex marriages to violate the constitutional rights of citizens. Marriages conducted in any Mexican state or the Federal District are recognized throughout the country.
Until 1836, Coahuila included the territory that is now Texas.
The 24 Things I Learned From Listening to the Marriage Arguments Before the Seventh Circuit
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…
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….
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)
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.
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?
Hamilton: And encourage parents to stick together and raise those children. Right?
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?
My name is Jori Stevian, and I am the webmaster for drugnews.net. I happened across boxturtlebulletin.com, and after reading through your content, I would like to see if you would be open to collaborating. Since we target similar niches, I think we would be a good fit, and I would love to contribute an article or blog post.
Of course, if you are looking for something specific at this time, we would be happy to cater our submission to fit your current requirements.
Please let me know if this sounds like a beneficial opportunity for you, and I will send something over shortly.
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
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.
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
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]
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.
Support for Marriage Equality Accelerates
August 15th, 2014
America’s growing support for marriage equality is rapidly accelerating, with support in the latest McClatchy-Marist poll now at 54-38 percent. It’s 75-19 for those aged eighteen through twenty-nine, and solid majorities support marriage equality in all age groups up to age sixty. And even for those above sixty, opposition has now fallen to the fifty percent mark. What’s driving this huge shift from just a few years ago?
By 71-27 percent, American adults say they know someone who’s gay. That’s a dramatic change from a generation ago, when a 1999 Pew poll found that Americans said by 60-39 percent that they didn’t know anyone who was gay. … The personal experience makes a big difference. Those who know someone who’s gay support same-sex marriage by 61-31 percent. Those who say they don’t know anyone who’s gay oppose same-sex marriage by 57-36 percent.
One would think this news would be demoralizing for the National Organization for Marriage and other marriage equality opponents. These results also show the kind of dilemma the Republican Party will be facing the next several years:
There are still opponents. Republicans oppose same-sex marriage by better than 2-1. Tea party supporters oppose it by nearly 3-1.
…And while there’s been vocal opposition, the poll found that virtually any movement in public opinion has been in favor of same-sex marriage. Twelve percent of adults have switched from opposition to support; just 1 percent changed from support to opposition.
Haley’s right-wing challenger supports marriage decision
July 29th, 2014
Nikki Haley, the Republican governor of South Carolina, is perceived to be weak by some of the state’s more extreme citizens. She simply isn’t sufficiently conservative on taxes, spending, education, or health care.
And in the race as an “Independent Republican”, seeking to provide an alternative to her radical liberalism (from a South Carolinan’s perspective), is former legislator and judge Tom Ervin. But Ervin may not tick all of the boxes one might expect from those to the right of Haley. (CharlestonCityPaper)
Government does not belong in the bedroom. My personal faith affirms that marriage is between a man and a woman but under our Constitution, people in this country are afforded equal protection under our laws.
This means that anyone should be free to marry the person they love. Government should not be in the bedroom, but it should also not be in the church. Individual churches should be allowed to decide which marriage ceremonies they want to perform.
Further action on this matter, such as an appeal by the state, is a waste of taxpayer dollars.
Well, ummm, yeah exactly!
So far, Haley has expressed support for the ban and Democratic gubernatorial candidate Vincent Sheheen was noncommital.
Compass points get marriage
July 17th, 2014
Marriage equality is now the law of the land in the
* Southernmost part of the contiguous United States: Ballast Key, Florida
* Northernmost part of the contiguous United States:
Sumas, Washington Northwest Angle Inlet in Lake of the Woods, Minnesota [still equal]
* Easternmost part of the contiguous United States: West Quoddy Head, Maine
* Westernmost part of the contiguous United States: Cape Alava, Washington
Florida marriage ban ruled unconstitutional
July 17th, 2014
In the first of a pair of marriage lawsuits, Huntsman v. Heavilin, a Florida county court has found that the ban on same-sex marriage violates the US Constitution. The ruling applies only to Monroe County. (Miami Herald)
Monroe County Circuit Judge Luis Garcia overturned Florida’s 2008 constitutional gay-marriage ban on Thursday, and ordered that two Key West bartenders be allowed to wed but not before Tuesday.
Aaron Huntsman and William Lee Jones, who met at a gay pride celebration and have been a couple for 11 years, sued Monroe County Clerk Amy Heavilin in April for a marriage license. Their case mirrors a similar suit in Miami-Dade County, in which six same-sex couples and LGBT advocacy group Equality Florida Institute sued County Clerk Harvey Ruvin for the right to marry.
Judge Garcia found the law in violation of both the Due Process and the Equal Protections provisions of the US Constitution. Additionally, noting that “Where a court suspects animus towards a disadvantaged group a more meaningful level of review is warranted”, Garcia illustrated the animus present in this case.
Fascinatingly, the judge turned to the amicus briefs provided by those opposing equality, specifically to Dr. Judith Reisman, to illustrate their own animus. (Ruling)
The court finds that despite the Amici Curiae assertion that there is no evidence of animus towards homosexuals by the proponents of the Florida Marriage Protection Amendment (FMPA), there is ample evidence not only historically but within the very memorandum of law filed by the Amici Curiae. For example, the affidavits of Dr. Reisman, filed by the Amici Curiae, for the proposition that, “a law encouraging homosexual behaviors appears to increase HIV risk and negative health outcomes and thus creates a danger both to the individual engaging in these behaviors as well as society as a whole.” The Amici Curiae also claims that homosexuality is not the result of biology, genetics or nature, but that in fact it is a choice that is naturally subject to change and within the control of the individual. (See page 20-21 of Amici Curiae memorandum.) The Amici Curiae’s memorandum paints a picture of homosexuals as HIV infected, alcohol and drug abusers, who are promiscuous and psychologically damaged and incapable of long term relationships or of raising children. (Pages 29-39). They contend, “the personal, social and financial costs of these homosexual-specific health problems concern not just those who engage in homosexual activity, but also the larger community of citizens who help provide services and who must bear part of the burden imposed by the health challenges. It is eminently rational for the voters of Florida to seek to minimize the deleterious effect of these conditions on public health, safety and welfare by affirming that marriage in Florida remains the union of one man and one woman.” (Page 39). The court finds that animus has been established by the plaintiffs and that the heightened rational basis test is appropriate.
Also, following an amusing trend, Garcia quoted Scalia on the matter.
Justice Scalia in his dissent in Lawrence v. Texas stated, “Preserving the traditional institution of marriage … is just a kinder way of describing the State’s moral disapproval of same-sex couples,” which is obviously not a legitimate purpose for the unequal treatment.
One of the more interesting side observations in this case is that while Florida Attorney General Pam Bondi expressed her intent to defend the law – and received considerable criticism for doing so – her defense has been so minimal as to infuriate the supporters of inequality.
After the hearing, [Liberty Counsel's Matt] Staver seemed outraged that Tanenbaum spoke for about five minutes at each of the South Florida hearings, and never actually argued in favor of the gay marriage ban.
Staver said [Florida Assistant Attorney General Adam] Tanenbaum’s boss, Florida Attorney General Pam Bondi, “is giving only window dressing to the Florida Marriage Amendment.”
It appears that the State’s sole argument was that states have the right to set marriage law for themselves.
Judge Garcia was appointed in 2000 by former Governor Jeb Bush.
Croatia passes partnership law
July 15th, 2014
Last July Croatia joined the European Union, after passing a non-discrimination law. Almost immediately, a government commission proposed a referendum to ban marriage equality. And in December 2013, the electorate declared their support for discrimination by a two-thirds vote (though with a very low voter turnout).
But later that month the government proposed a ‘life partnership’ registry, and now that legislation has passed. (Ansamed)
La Croazia si è unita oggi ai Paesi che riconoscono le unioni civili tra le coppie dello stesso sesso, garantendo alle coppie gay e lesbiche tutti i diritti delle coppie sposate, con l’eccezione dell’adozione dei figli, e definendo queste unioni come una forma di vita famigliare.
Il Parlamento di Zagabria ha approvato oggi con 89 voti a favore, giunti dai banchi dei partiti di centro-sinistra e liberali che formano la coalizione di governo la Legge sulle unioni civili tra le coppie omosessuali, modellata in maggior parte su quella tedesca. Contro hanno votato 16 deputati di destra e centro-destra, che non si oppongono alla necessità di regolare le coppie omosessuali, ma considerano questa legge troppo liberale.
Croatia has today joined the countries that recognize civil unions between same-sex couples, granting gay and lesbian couples all the rights of married couples, with the exception of the adoption of children, and defining these unions as a form of family life.
The Parliament in Zagreb today approved with 89 votes in favor, came from the banks of the parties of the center-left and liberals who form the ruling coalition the Law on civil unions between same-sex couples, modeled in most of the German. 16 deputies voted against right-wing and center-right, which is not opposed to the need to regulate same-sex couples, but consider this law too liberal.
One of the complications which the community had faced was a Constitutional requirement that the State ‘protect the family’. Lawmakers got around that problem by defining life partnerships to be a form of family.
Obama Administration to Argue Against State Marriage Bans Before Supreme Court
July 15th, 2014
Over the weekend, Attorney General Eric Holder announced that the Justice Department will urge the U.S. Supreme Court to uphold lower court rulings which have struck down bans against same-sex marriage in more than twenty states:
If the Supreme Court agrees to hear any of those cases, the Justice Department will file a brief with the court that “will be in support of same-sex marriage,” Holder said in a rare interview, sitting down with ABC News’ Pierre Thomas.
Holder said the brief would be “consistent with the actions that we have taken over the past couple of years.” The Justice Department has refused to defend the Defense of Marriage Act, which defines marriage as between a man and a woman, and its legal efforts to extend federal benefits to same-sex couples have been successful.
Holder called the battle for marriage equality “a defining civil rights challenge of our time.”
Last week, the Attorney General’s office for the state of Utah announced that it would take its appeal of a lower court ruling striking down the state’s same-sex marriage ban straight to the U.S. Supreme Court rather than ask for an en banc hearing before the entire Tenth Circuit. A three-judge panel of the Tenth Circuit in June upheld a Federal District Court’s ruling which declared Utah’s ban against same-sex marriage unconstitutional.
Hearing on Florida marriage lawsuit today
July 2nd, 2014
Eleventh Judicial Court Judge Sarah Zabel will preside over the case of Pareto v. Ruvin in a hearing scheduled for 4 Wednesday afternoon.
The suit looks to overturn Florida’s ban on same-sex marriage, which was added to the state constitution in 2008. According to Equality Florida, the six couples’ motion asserts that Florida’s marriage ban cannot stand in light of last year’s U.S. Supreme Court ruling that the federal “Defense of Marriage Act” violates the federal constitutional guarantees of equal protection and due process.
Florida Equality is livetweeting
At least one marriage in Indiana will be recognized
July 2nd, 2014
Last 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.
Nevada marriage hearing set
July 1st, 2014
A federal appeals court says it will consider Nevada’s gay marriage ban on Sept. 8.
The 9th Circuit Court of Appeals in San Francisco has scheduled 20 minutes of oral arguments in the case of Beverly Sevcik v. Brian Sandoval. The court will also hear arguments that morning over similar cases in Idaho and Hawaii.
You may recall that Attorney General Cortez Masto and Governor Sandoval have pulled all state defense of the marriage ban, leaving only the Coalition for the Protection of Marriage to argue the case.
Another Marriage Ban Bites the Dust
July 1st, 2014
A federal judge today ruled that same-sex couples have a right to marry in Kentucky.
“In America, even sincere and long-hold religious beliefs do not trump the constitutional rights of those who happen to have been out-voted,” U.S. District Judge John G. Heyburn II wrote to invalidate Kentucky’s constitutional amendment banning gay marriage.
…Heyburn upheld the right to marry today, but put his ruling on hold pending a decision by a higher court. Heyburn rejected the only justification offered by lawyers for Kentucky Gov. Steve Beshear — that traditional marriages contribute to a stable birth rate and the state’s long-term economic stability.
“These arguments are not those of serious people,” he said.
Judge Heyburn, who was appointed to the bench in 1992 by President George H.W. Bush on Sen. Mitch McConnell’s (R-KY) recommendation, ruled that Kentucky’s ban violates the Equal Protection clause of the U.S. Constitution. Earlier this year, the same judge ruled that the state of Kentucky must recognize the validity of same-sex marriages performed in other states.
The full ruling is here. Judge Heyburn begins by observing the near-unanimity of prior court decisions in the wake of Windsor but explains why, unlike most other Federal judges, he chose not to rule on Due Process grounds:
Since the Supreme Court’s landmark decision in United States v. Windsor, 133 S.Ct. 2675 (2013), every federal court to consider state bans on same-sex marriage and recognition has declared them unconstitutional. Most of these courts have done so under both the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. This Court’s opinion differs in that it does not determine whether Kentucky’s laws interfere with a fundamental right. The Court’s chief reason for declining to do so is its careful reading of Windsor, which suggests that the Supreme Court is unwilling and unlikely to view the right Plaintiffs seek to exercise as fundamental under the Constitution.
He explains that a bit further
Although many courts have discussed the Equal Protection and Due Process Clauses in tandem, ultimately, this Court sees this case as more clearly about the imposition of a classification than about the contours of a due process right. The constitutional question is whether a state can lawfully exclude a certain class of individuals, i.e. homosexual persons, from the status and dignity of marriage. The Court will resolve Plaintiffs’ claims solely on equal protection grounds.
Judge Heyburn acknowledged that “the most difficult part of the equal protection analysis here is determining the proper standard of review.” For heightened scrutiny, which places to burden of proof on the state to show that its action against a suspect class is narrowly tailored to further a legitimate government interest. If the action interferes with a fundemantal right, then gay people qualify as a suspect class, then strict scrutiny applies. But if gay people are simply being singled out for special treatment for other reasons, then they may qualify for quasi-suspect class requiring heghtened scrutiny. While Loving v. Virgina and other court cases identified marriage as a fundamental right, Judge Heyburn found that when the U.S. Supreme Court had the opportunity to extend that fundamental right to gay people in Windsor, it decliend to do so:
If the inquiry here is viewed as a contours-of-the-right question, holding that the fundamental right to marry encompasses same-sex marriage would be a dramatic step that the Supreme Court has not yet indicated a willingness to take. Further, it is a step that is unnecessary to the ultimate result in this action. Given the current posture of relevant constitutional jurisprudence, this Court finds caution here a more appropriate approach to avoid overreaching in its own constitutional analysis.
He did however rule that gay people constitute a quasi-suspect class, based on four factors identified by the Supreme Court: 1) historical discrimination, 2) ability to contribute to society, 3) immutable defining characteristics, and 4) politiacl powerlessness.
Historical discrimination against homosexual persons is readily apparent and cannot reasonably be disputed. Further, the Court cannot think of any reason why homosexuality would affect a person’s ability to contribute to society. No court has concluded otherwise. The remaining two factors, immutability and political powerlessness, are slightly less straightforward.
As to immutability, the relevant inquiry is not whether a person could, in fact, change a characteristic, but rather whether the characteristic is so integral to a person’s identity that it would be inappropriate to require her to change it to avoid discrimination. Accord Wolf, 2014 WL 2558444, at *28; see also Griego v. Oliver, 2014-NMSC-003, 316 P.3d 865, 884 (N.M. 2013). For example, strictly speaking, a person can change her citizenship, religion, and even gender. Legislative classifications based on these characteristics nevertheless receive heightened scrutiny because, even though they are in a sense subject to choice, no one should be forced to disavow or change them. That is, these characteristics are “an integral part of human freedom” entitled to constitutional protection, as is sexual expression. Lawrence, 539 U.S. at 577. …
Finally, the Court finds that homosexual persons are “politically powerless” within the constitutional meaning of this phrase. In discussing this factor, the Second Circuit noted: “The question is not whether homosexuals have achieved political influence and success over the years; they clearly have. The question is whether they have the strength to politically protect themselves from wrongful discrimination.” Windsor, 699 F.3d at 184. Indeed, if the standard were whether a given minority group had achieved any political successes over the years, virtually no group would qualify as a suspect or quasi-suspect class. A more effective inquiry looks to the vulnerability of a class in the political process due to its size or political or cultural history. See Wolf, 2014 WL 2558444, at *29. Under this inquiry, Kentucky’s laws against homosexual persons are “Exhibit A” of this powerlessness.
With gay people identified as a quasi-suspect class, Judge Heyburn ruled that the state of Kentucky was burdened with proving that its same-sex marriage ban is substantially related to an important governmental objective. And here’s where we get to the really juicy part, because Judge Heyburn then went on to say that Kentucky’s ban on same-sex marriage would not even stand up to any level of scrutiny. “Rational basis review, while deferential, is not ‘toothless,’” Heyburn noted, before tearing into the state’s “illogical and even bewildering” attempts to justify Kentucky’s marriage ban:
The Court will begin with Defendant’s only asserted justification for Kentucky’s laws prohibiting same-sex marriage: “encouraging, promoting, and supporting the formation of relationships that have the natural ability to procreate.” Perhaps recognizing that procreation- based arguments have not succeeded in this Court, see Bourke, 2014 WL 556729, at *8, nor any other court post-Windsor, Defendant adds a disingenuous twist to the argument: traditional marriages contribute to a stable birth rate which, in turn, ensures the state’s long-term economic stability.
These arguments are not those of serious people. Though it seems almost unnecessary to explain, here are the reasons why. Even assuming the state has a legitimate interest in promoting procreation, the Court fails to see, and Defendant never explains, how the exclusion of same-sex couples from marriage has any effect whatsoever on procreation among heterosexual spouses. Excluding same-sex couples from marriage does not change the number of heterosexual couples who choose to get married, the number who choose to have children, or the number of children they have. See Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252, 1291 (N.D. Okla. 2014) (“Marriage is incentivized for naturally procreative couples to precisely the same extent regardless of whether same-sex couples (or other non- procreative couples) are included.”). The Court finds no rational relation between the exclusion of same-sex couples from marriage and the Commonwealth’s asserted interest in promoting naturally procreative marriages.
The state’s attempts to connect the exclusion of same-sex couples from marriage to its interest in economic stability and in “ensuring humanity’s continued existence” are at best illogical and even bewildering. These arguments fail for the precise reasons that Defendant’s procreation argument fails.
Numerous courts have repeatedly debunked all other reasons for enacting such laws. The Court can think of no other conceivable legitimate reason for Kentucky’s laws excluding same-sex couples from marriage.
The State tried to anticipate one anti-gay argument that courts elsewhere have slapped down by asserting that just because oppposite-sex couples may not be able to procreate or may chose not to, doesn’t mean that it can’t deny marriage licenses to same-sex couples because they can’t procreate. Judge Heyburn agreed that this inconsistency doesn’t automatically fail a rational-basis rule. “However, that Kentucky’s laws do not deny licenses to other non- procreative couples reveals the true hypocrisy of the procreation-based argument,” he countered.
More importantly, the imperfect line-drawing argument assumes incorrectly that the Court bases its ruling on a comparison between same-sex couples and other non-procreative couples. On the contrary, this Court bases its ruling primarily upon the utter lack of logical relation between the exclusion of same-sex couples from marriages and any conceivable legitimate state interest. Any relationship between Kentucky’s ban on same-sex marriage and its interest in procreation and long-term economic stability “is so attenuated as to render the distinction arbitrary or irrational.” City of Cleburne, 473 U.S. at 446.
Judge Heybourn concluded his ruling by noting both reaction to his earlier ruling requiring Kentucky to recognize same-sex marriage performed outside the state and the evolving legal landscape since his earlier decision:
Since this Court’s Bourke opinion, the legal landscape of same-sex marriage rights across the country has evolved considerably, with eight additional federal district courts and one circuit court invalidating state constitutional provisions and statutes that denied same-sex couples the right to marry. …With this opinion, this Court joins their company.
Sometimes, by upholding equal rights for a few, courts necessarily must require others to forebear some prior conduct or restrain some personal instinct. Here, that would not seem to be the case. Assuring equal protection for same-sex couples does not diminish the freedom of others to any degree. Thus, same-sex couples’ right to marry seems to be a uniquely “free” constitutional right. Hopefully, even those opposed to or uncertain about same-sex marriage will see it that way in the future.
The Court’s holding today is consistent with Bourke, although it requires different relief. The ability to marry in one’s state is arguably much more meaningful, to those on both sides of the debate, than the recognition of a marriage performed in another jurisdiction. But it is for that very reason that the Court is all the more confident in its ruling today.