The Most Momentous Supreme Court Non-Decision Ever Made
October 6th, 2014
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.
SCOTUS allows marriage wins
October 6th, 2014
The Supreme Court of the United States has just denied certiorari to the appeals by states from three circuit districts. (ABC)
The Supreme Court cleared the way Monday for an immediate expansion of same-sex marriage by unexpectedly and tersely turning away appeals from five states seeking to prohibit gay and lesbian unions. The court’s order effectively makes gay marriage legal in 30 states.
Without comment, the justices brought to an end delays in same-sex marriages in five states— Indiana, Oklahoma, Utah, Virginia and Wisconsin.
In addition to those five states, in which marriage equality will immediately become law, the other non-marriage states within those circuits are but a formality away. Filing for equality in federal court in states within the Fourth, Seventh, and Tenth districts should result in an immediate favorable decision for West Virginia, North Carolina, South Carolina, Colorado, Kansas, and Wyoming.
The question of the constitutionality of anti-gay marriage bans generally has not yet been determined. SCOTUS could take up other districts’ appeals should they reach the court.
However, it should be noted that the decision to grant or deny certiorari is not a majority vote. It takes but four justices to decide that a court will hear an appeal. This suggests that either the conservative end of the court is hoping to wait for an appeal that better fits their opposition, or (despite long supposition otherwise) there are not four justices on the Supreme Court that oppose marriage equality and find it’s prohibition to be within the confines of constitutional enactment by the states.
The denial of cert to the three districts is not, as I noted, immediately determinative on the other districts. However, it does provide strong legal precedent – unless and until the court indicates otherwise – leaving it difficult for district judges to conclude gay marriage bans have constitutional merit. And, though it is no longer given much attention, it completely invalidates Baker v. Nelson as an argument for precedent.
At this point, it looks promising that marriage may soon come to all states.
The sweetest story
September 18th, 2014
There is nothing I don’t love about this story. (Des Moines Register)
For so long, their love was not public. But when the news broke about their Sept. 6 wedding, their story was spread across the Internet and social media. In one week, decades of silence ended. They had never before talked to anyone about their relationship.
“In all those 72 years, no one said anything about it, either negative or positive,” said Vivian, 91, sitting across the dining hall table from Nonie, 90, on Wednesday at a Davenport retirement community where they have lived since 1987.
Go read it.
Is Arizona Next?
September 16th, 2014
Last Friday, Federal District Court Judge John W. Sedwick issued a partial ruling which ordered the state to recognize a gay couple’s marriage after one of the partners died last summer. The state is now required to list the couple as having been married on the death certificate.
The case involves more than a dozen gay and lesbian couples seeking to overturn Arizona’s ban on same-sex marriage, and a ruling on the larger issue hasn’t come down. But Lyle Denniston at SCOTUSBlog thinks this early ruling tells us that Judge Sedwick is about to strike Arizona’s ban:
Judge Sedwick, who usually sits in Anchorage, Alaska, but is doing temporary duty to handle civil cases in Phoenix, cited a string of other federal court rulings striking down state prohibitions on same -sex marriage, and he commented on “the absence of any persuasive case law to the contrary.” He then added that the surviving partner in this case “is likely to prevail” in his challenge before the judge.
Because that claim is part of a broader case before the judge, involving one lawsuit filed in January and a separate case filed in March and proceeding jointly before him, his remarks were a strong indication that a 2008 state constitutional amendment and two state laws against same-sex marriage probably are going to be nullified.
A huge factor weighing against Arizona’s ban is that it is in the Ninth Circuit, which requires the more demanding “heightened scrutiny” test. Judge Sedwick has already denied the state’s claim that it doesn’t apply for this case in last week’s ruling.
Thanks for clarifying
September 10th, 2014
The opponents of equality have vociferously insisted that they hold no animus to gay people in their efforts to deny marriage to same-sex couples. No, it’s for the children, to encourage heterosexual marriage, to send a message of paternal bonding, to encourage parentage of accidental babies, and to channel procreation into socially advantageous structures but never, ever, ever is it animus towards gay people.
Except, of course, that absolutely everyone knows that the primary motivation for the opposition to same-sex marriage is an objection to same-sex couples being perceived or recognized as socially, legally, or morally equivalent to opposite-sex couples. It is, and always has been, based in a desire to hold heterosexuals out as superior to homosexuals and to firmly continue that message and social position.
And perhaps nothing makes so honest an admission of that motivation than an amicus brief filed in support of the state of Utah in it’s appeal to the decision by the Tenth Circuit Court of Appeals that their anti-gay marriage laws violate the US Constitution.
But first the back-story.
David Fancher and Paul Hard met in Montgomery, Alabama, in 2004. Six years later, in May 2011, they married on a beach in Massachusetts. Less than three months later Fancher was dead, the consequence of a traffic accident caused by an overturned truck.
Fancher and Hard had tried to protect their family with such wills and other legal documents as they could. Nevertheless, Hard was subjected to indignity at the hospital and later at the funeral home. But no indignity mattered so much as Alabama state law which disallows anyone who isn’t “next of kin” to receive compensation from a wrongful death. And the state of Alabama specifically disallowed David Fancher’s husband from being next of kin.
Earlier this year, Hard sued the state and asserted that the ban on recognizing same-sex marriages legally conducted in another state were in violation of several provisions of the US Constitution and that he is legally entitled to half of the settlement. However, his mother-in-law, Pat Fancher, contacted Judge Roy Moore’s Foundation for Moral Law to defend her claim on the money.
But, it’s not just all about the money. And though Alabama is in the Eleventh Circuit, the Foundation for Moral Law has filed a brief arguing just why it is that Utah’s anti-gay laws (and thus Alabama’s) should be vindicated by the Supreme Court.
The Foundation has an interest in this case because it believes that this nation’s laws should reflect the moral basis upon which the nation was founded, and that the ancient roots of the common law, the pronouncements of the legal philosophers from whom this nation’s Founders derived their view of law, the views of the Founders themselves, and the views of the American people as a whole from the beginning of American history at least until very recently, have held that homosexual conduct is immoral and should not be sanctioned by giving it the official state sanction of marriage.
Well, thanks for clarifying that for us.
Yes, we’ve always knows that your objections to equality have no real rational reason or purpose. We’ve always understood that it is your religious beliefs that have justified truly vile behavior to others. We’ve been clear from the start that this has nothing to do with the smoke screens thrown up by state and advocacy group attorneys and everything to do with punishing gay people for their own existence.
But it’s nice to see it there so starkly in print.
Croatia gets first civil union
September 6th, 2014
Last December, the populace of Croatia, a very Catholic nation, voted to limit marriage to opposite sex couples. But in July the legislature passed a bill creating civil unions, providing same sex couples with nearly all the same rights as marriage.
Now the first such civil union has been conducted. (rtl)
Le premier couple gay s’est uni en Croatie en vertu d’une loi adoptée à la mi-juillet qui aligne les droits des unions homosexuelles et hétérosexuelles, sauf en matière d’adoption des enfants, a annoncé un groupe de défense des droits des homosexuels.
“Ce soir, une page de l’histoire a été écrite à Zagreb (…) la première union civile a été conclue”, a annoncé tard vendredi 5 septembre le groupe de défense des droits des homosexuels Pride sur sa page Facebook. “Bonne chance et meilleurs voeux aux mariés”, a ajouté Pride sans fournir de précisions, à l’exception d’une photocopie partielle du document scellant l’union.
The first gay couple is united in Croatia under a law passed in mid-July that aligns the rights of homosexual and heterosexual , except in the Adoption of Children, said a group of Advocacy homosexuals.
“Tonight, a page of history was written in Zagreb (…) the first civil union was completed,” announced late Friday, 5 September the advocacy group for gay rights Pride on his Facebook page . ” Good luck and best wishes to the married , “he added without elaborating Pride, with the exception of a partial photocopy of sealing the union.
Seventh Circuit slaps down gay marriage bans
September 4th, 2014
Well that was quick!
Just last week Justices Williams, Hamilton, and Posner heard oral argument as to why the states of Wisconsin and Indiana could ban marriage between same-sex couples without violating their constitutional rights. Today they’ve released their ruling and, to no one’s surprise, they unanimously agree that anti-gay marriage bans are unconstitutional.
They didn’t exactly pull punches.
Our pair of cases is rich in detail but ultimately straight-forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously.
The justices found that a ‘more than reasonable basis” review was required because discrimination against a minority makes a law “constitutionally suspect”. Nevertheless, not even a rational basis was provided.
They found that these laws violate the equal protections promises of the constitution and, as it was unnecessary, chose not to prove other possible violations.
Interestingly, the court seemed to find merit in the theories that homosexuality is a form of natural selection by which a small percentage of a population is not naturally procreative, thus freeing that subgroup to provide supplemental care for the children of procreative relatives. This may speak to the motivation of Posner’s repeated questions about the harm to children adopted by same-sex couples.
And it forms much of the ruling:
Married homosexuals are more likely to want to adopt than unmarried ones if only because of the many state and federal benefits to which married people are entitled. And so same-sex marriage improves the prospects of unintended children by increasing the number and resources of prospective adopters. Notably, same-sex couples are more likely to adopt foster children than opposite-sex couples are.
Also, the more willing adopters there are, not only the fewer children there will be in foster care or being raised by single mothers but also the fewer abortions there will be. Carrying a baby to term and putting the baby up for adoption is an alternative to abortion for a pregnant woman who thinks that as a single mother she could not cope with the baby. The pro-life community recognizes this.
I love the reference to the pro-life community. It’s reminding them that their biases are hurting themselves as well.
Finally, they concluded:
To return to where we started in this opinion, more than unsupported conjecture that same-sex marriage will harm heterosexual marriage or children or any other valid and important interest of a state is necessary to justify discrimination on the basis of sexual orientation. As we have been at pains to explain, the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.
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?
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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
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