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Posts for August, 2014

The 22 Things I Learned From Listening to the Marriage Arguments Before the Seventh Circuit

Jim Burroway

August 26th, 2014

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

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

1. These three judges are awesome!

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

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

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

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

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

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

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

Fisher: Whether it would or not ….

Posner: Well answer my question.

Fisher: I don’t know the answer….

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

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

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

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

Fisher: No.

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

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

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

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

Fisher: Undoubtedly, but … may I continue?

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

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

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

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

Posner: This is worrying you or what?

Fisher: I’m sorry?

Posner: This is worrying you?

Fisher: Yes! It’s worrying me.

Posner: The three parents? (chuckles)

Fisher: In the sense that if you have three parents, three people with parental rights, and if marriage rights follow parental rights, then we’re looking at plural marriages. That’s the point about there being no limiting principle to the plaintiff’s arguments.

Posner: But if a married couple adopts a child, they’re the only people who have parental rights.

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.

Fisher: It’s one thing to criminalize….

Posner: You don’t seem to like adoption as a way of dealing with it.

Fisher: That is… no! That is not true! It’s not that we don’t like it. We are grateful for adoption….

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?

Fisher: The marriage scheme is set up not with adoption in mind. It was set up dealing with the consequences…

Posner: But that’s a kind of weakness, isn’t it?

Fisher: Well, no! In fact, we’re looking here at an institution that goes back to when, you know, there was a fundamental problem dealing with unintended pregnancies…

Posner: Why does Indiana let sterile people marry?

Fisher: I think the law goes as far as it reasonably can in defining marriage according to this theory of responsible procreation.

Posner: You allow incest, right?

Fisher: We allow incest? We don’t allow incest.

Posner: First cousins over sixty-five….

Fisher: Oh, sorry, over sixty-five … I think, yeah, there again the assumption being that there would be infertility at that stage. Now…

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 commonwell rather than the codifying….

Posner: (Scoffs)

Hamilton: (Incredulous) What?

Posner: (Scoffs again.) What’s he trying? Look, interracial marriage had been forbidden in the colonies and in many, many states, not just southern but western for literally… well… more than a hundred years. So why wasn’t that a tradition?

Samuelson: It’s distinguishable. It’s a different tradition…

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

Samuelson: We’re not making that argument.

Posner: Don’t you have to have some empirical or some practical or common sense basis for barring these marriages? I didn’t get anything out of your brief that sounded like a reason for doing this.

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

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

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?

12. 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. You don’t say homosexuality is a choice, right?

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…

13. And Trotting out Edmund Burke won’t work.

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…

14. 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?

15. 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?

16. 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.

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

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

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

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

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

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

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

Williams: Yes.

Hamilton: It’s been tried before.

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

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

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

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

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

Samuelson: Frankly, I reject that premise.

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

Samuelson: Oh, I don’t doubt that.

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

Samuelson: Oh I don’t doubt that either.

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

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

Posner: Really?

Samuelson: It certainly hasn’t been briefed.

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

If it hasn’t become obvious already, it should be 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 utterly unprepared to deal effectively with other people’s arguments.

But 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.

20. 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 concept and then asking the student to come up with one example — just one example — of something that fits that concept. 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.”

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

And another argument against same-sex marriage falls:

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

Samuelson: Right.

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

Samuelson: Correct.

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

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

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

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

Samuelson: I’m not quarrelling with that.

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

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

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

22. 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 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.

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.”
  • ” 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.

Wisconsin Same-Sex Marriages Put On Hold

Jim Burroway

June 16th, 2014

Federal District Juidge Barbara Crabb, who earlier had ruled that Wisconsin’s ban on same-sex marriages violated the U.S. Constitution, has issued her injunction on Friday which also includes a stay.

Judge Crabb’s earlier ruling was unusual in that, unlike other rulings, hers did not include an injunction compelling the state to grant marriage licenses to same-sex couples. Instead, Judge Crabb asked the parties to submit proposed language for an injunction that would follow in a couple of weeks. The original deadline for those proposals was today,but when Dane and Milwaukee Counties decided to begin issuing marriage licenses even in the absence of an injunction, Judge Crab accelerated her timetable. By the time she issued her injunction and stay on Friday, some five out of every six Wisconsin counties were issuing licenses. Judge Crabb’s injunction does order state and county officials to issue marriage licenses, but she also accompanied that order with a stay pending appeal:

After seeing the expressions of joy on the faces of so many newly wedded couples featured in media reports, I find it difficult to impose a stay on the event that is responsible for eliciting that emotion, even if the stay is only temporary. Same-sex couples have waited many years to receive equal treatment under the law, so it is understandable that they do not want to wait any longer. However, a federal district court is required to follow the guidance provided by the Supreme Court. Because I see no way to distinguish this case from Herbert, I conclude that I must stay any injunctive relief pending appeal.

The remaining question is whether the stay should include all relief, including the declaration, rather than just the injunction. Although I remain dubious that it is necessary to “stay” declaratory relief, I understand that there has been much confusion among county clerks regarding the legal effect of the declaration. To avoid further confusion among theclerks, I will issue a stay of all relief.

Joyous Weddings Are Breaking Out In Wisconsin

Jim Burroway

June 6th, 2014

Shari Roll (purple) and Renee Currie embrace after becoming the first same-sex couple to marry in Madison, WI.

The AP says:

It wasn’t clear whether Crabb’s 88-page ruling cleared the way for same-sex marriages to begin immediately, but Milwaukee and Dane county officials began issuing licenses and officiants were at the clerk’s office ready to go in Dane County. Both counties were keeping clerk’s office open past regular closing hours Friday.

Wisconsin Attorney General J.B. Van Hollen says he will seek an emergency federal court order to stop the marriages in light of clerks going ahead with marriages.

Dane County (Madison) and Milwaukee County will stay open until 9:00 tonight. Milwaukee County Executive Chris Abele says he will personally pay for the overtime costs associate with keeping his courthouse open. But Attorney General J.B. Van Hollen said current law is still in force:

“In light of the decision of some county clerks to issue marriage licenses to same-sex couples, I will be filing emergency motions in the federal courts to stay Judge Crabb’s order,” he wrote. “The United States Supreme Court, after a referral from Justice Sotomayor, stayed a lower court’s decision striking down Utah’s ban on same-sex marriage. There is no reason to believe the Supreme Court would treat Wisconsin’s ban any differently.”

Matthew Schreck and José Fernando Gutierrez were the first to marry in Milwaukee.

Okay, It’s Friday Afternoon. Which State’s Marriage Ban Got Knocked Down Today?

Jim Burroway

June 6th, 2014

Wisconsin! (PDF: 439KB/88 pages)

It is DECLARED that art. XIII, § 13 of the Wisconsin Constitution violates plaintiffs’ fundamental right to marry and their right to equal protection of laws under the Fourteenth Amendment to the United States Constitution. Any Wisconsin statutory provisions, including those in Wisconsin Statutes chapter 765, that limit marriages to a “husband” and a “wife,” are unconstitutional as applied to same-sex couples.

But marriages aren’t available in the Badger State just yet:

Plaintiffs may have until June 16, 2014, to submit a proposed injunction that complies with the requirement in Fed. R. Civ. P. 65(d)(1)(C) to “describe in reasonable detail . . . the act or acts restrained or required.” In particular, plaintiffs should identify what they want each named defendant to do or be enjoined from doing. Defendants may have one week from the date plaintiffs file their proposed injunction to file an opposition. If defendants file an opposition, plaintiffs may have one week from that date to file a reply in support of their proposed injunction.

I will address defendants’ pending motion to stay the injunction after the parties have had an opportunity to file materials related to the proposed injunction. If the parties wish, they may have until June 16, 2014, to supplement their materials related to that motion in light of the Supreme Court’s decision in Geiger v. Kitzhaber not to grant a stay in that case.

(UPDATE: It looks like some counties aren’t waiting until the 16th to begin issuing licenses. But without an injunction in place, is that legal? Any lawyers in the bunch, please weigh in with your comments.)

This ruling by Federal District Judge Barbara B. Crabb is the twentieth in a string of rulings which have all found that all or portions of several states’ marriage equality bans are unconstitutional. The unanimity of these rulings since the Windsor ruling last summer is breathtaking. It’s hard to image at this point, regardless of which of the dozens of appeals making their way to the U.S. Supreme Court, how that court can rule that all twenty judges from across the country were somehow reading the law wrong.

The case was brought by the ACLU on behalf of eight Wisconsin same-sex couples. Two of the couples had married out of state — one in Minnesota, and one in Canada.

Judge Crab opened her decision by delineating exactly what the case was all about. In doing so, she issued two notable shout-outs: longtime marriage equality foe Maggie Gallagher, and longtime marriage equality advocate Andrew Sullivan:

In reaching this decision, I do not mean to disparage the legislators and citizens who voted in good conscience for the marriage amendment. To decide this case in favor of plaintiffs, it is not necessary, as some have suggested, to “cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools,” United States v. Windsor, 133 S. Ct. 2675, 2717-18 (2013) (Alito, J., dissenting), or “adjudg[e] those who oppose [same-sex marriage] . . . enemies of the human race.” Id. at 2709 (Scalia, J., dissenting). Rather, it is necessary to conclude only that the state may not intrude without adequate justification on certain fundamental decisions made by individuals and that, when the state does impose restrictions on these important matters, it must do so in an even-handed manner.

This case is not about whether marriages between same-sex couples are consistent or inconsistent with the teachings of a particular religion, whether such marriages are moral or immoral or whether they are something that should be encouraged or discouraged. It is not even about whether the plaintiffs in this case are as capable as opposite-sex couples of maintaining a committed and loving relationship or raising a family together. Quite simply, this case is about liberty and equality, the two cornerstones of the rights protected by the United States Constitution.

Although the parties in this case disagree about many issues, they do agree about at least one thing, which is the central role that marriage plays in American society. It is a defining rite of passage and one of the most important events in the lives of millions of people, if not the most important for some. Of course, countless government benefits are tied to marriage, as are many responsibilities, but these practical concerns are only one part of the reason that marriage is exalted as a privileged civic status. Marriage is tied to our sense of self, personal autonomy and public dignity. And perhaps more than any other endeavor, we view marriage as essential to the pursuit of happiness, one of the inalienable rights in our Declaration of Independence. Linda Waite and Maggie Gallagher, Case for Marriage 2 (Broadway Books 2000) (stating that 93% of Americans rate “having a happy marriage” as one of their most important goals, an ever higher percentage than “being in good health”). For these reasons and many others, “marriage is not merely an accumulation of benefits. It is a fundamental mark of citizenship.” Andrew Sullivan, “State of the Union,” New Republic (May 8, 2000). Thus, by refusing to extend marriage to the plaintiffs in this case, defendants are not only withholding benefits such as tax credits and marital property rights, but also denying equal citizenship to plaintiffs.

 Judge Crabb also found one of the state’s arguments for supporting the marriage ban an odd one:

What is perhaps defendants’ oddest argument relies on a distinction between what defendants call “positive rights” and “negative rights.” In other words, the Constitution protects the rights of individuals to be free from government interference (“negative rights”), but it does not give them a right to receive government benefits (“positive rights”). … Thus, defendants say, although the due process clause may protect the right of individuals to engage in certain intimate conduct (a “negative right”), it “does not preclude a state from choosing not to give same-sex couples the positive right to enter the legal status of civil marriage under state law.

Defendants’ argument has two problems. First, the Supreme Court has held on numerous occasions that marriage is a fundamental right protected by the Constitution. E.g., Turner v. Safley, 482 U.S. 78, 95 (1987); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640 (1974); Loving v. Virginia, 388 U.S. 1, 12 (1967). Thus, even if marriage is a “positive right” as defendants understand that term, marriage stands as an exception to the general rule.

Second, even if I assume that the state would be free to abolish the institution of marriage if it wished, the fact is that Wisconsin obviously has not abolished marriage; rather, it has limited the class of people who are entitled to marry. The question in this case is not whether the state is required to issue marriage licences as a general matter, but whether it may discriminate against same-sex couples in doing so. Even in cases in which an individual does not have a substantive right to a particular benefit or privilege, once the state extends that benefit to some of its citizens, it is not free to deny the benefit to other citizens for any or no reason on the ground that a “positive right” is at issue. In fact, under the equal protection clause, “the right to equal treatment . . . is not co-extensive with any substantive rights to the benefits denied the party discriminated against.” Heckler v. Mathews, 465 U.S. 728, 739, 646 (1984). Therefore, “[t]he State may not . . . selectively deny its protective services to certain disfavored minorities without violating the Equal Protection Clause.” DeShaney, 489 U.S. at 197 n.3.

Wisconsin Attorney General J.B. Van Hollen, a Republican who is seeking re-election in November, has vowed to appeal the ruling to the Seventh Circuit Court of Appeals, and will seek a stay of the ruling on the 16th. A spokesman for Gov. Scott Walker has issued a statement supporting Van Hollen’s appeal.