John M. Becker

Marriage Bans Take a Beating at the Seventh Circuit

Filed By John M. Becker | August 26, 2014 4:30 PM | comments

Filed in: Marriage Equality, Politics
Tags: 7th Circuit Court of Appeals, gay marriage, Indiana, marriage discrimination, marriage equality, Richard Posner, same-sex marriage, Wisconsin

scales_justice.jpgSame-sex marriage bans in Indiana and Wisconsin took a beating today at the 7th U.S. Circuit Court of Appeals in Chicago, where a three-judge panel greeted anti-equality arguments from Wisconsin and Indiana with a combination of skepticism and derision. The court appears poised to hand marriage equality advocates another federal court win -- and possibly their first unanimous one.

As a packed courtroom looked on, the judges -- Richard Posner, a Reagan appointee; Ann Claire Williams, appointed by Bill Clinton; and Obama appointee David F. Hamilton -- repeatedly tore into Indiana Solicitor General Thomas Fischer and Wisconsin Assistant Attorney General Timothy Samuelson. Posner, by far and away the fiercest interrogator, slammed Indiana's claim that their governmental concern behind regulating marriage is accidental births and "unintended children":

"So now you have a huge number of potentially abandoned children, they're put up for adoption. Don't you think it would help these children, the products of these accidental births, if their parents -- whether same-sex or different-sex -- were married?"

Fischer tried to equivocate, but Posner wasn't having it. "Answer my question," he ordered.

That interaction, which occurred just seconds into Fischer's opening statements, set the tone for the shellacking that was to follow. "Yeah, I'm going to interrupt you," Posner told an obviously frustrated Fischer. "You're just going to have to be patient."

"Would you criminalize fornication?" Posner asked sarcastically. "It sounds like a way of dealing with this unintended child problem."

Judge Williams piled on, expressing disbelief at Fischer's contention that even though same-sex couples can successfully raise children, Indiana's marriage ban should remain because "with opposite-sex couples, there is very little thought given during the sexual act sometimes to whether babies may be a consequence."

"So," Williams said, "because gay and homosexual couples actually choose to be parents, choose to take on that obligation, that difference of choice is set up differently than accidental? Here are people who actually want to have children -- know that they want to have children. It is not accidental; they make that commitment to raise children. I just don't get that."

Judge Hamilton pointed out that marriage bans are based on sex: "Bob can marry Chris if Chris is a female; Bob cannot marry Chris if Chris is a male. So that would seem to point us in the direction of heightened scrutiny."

He also noted the parallels between Indiana's anti-equality arguments and those made in the last century to justify bans on interracial marriage:

"The right to equal protection of the laws is an individual right... [and] the argument you're making is exactly the same argument that was made with respect to race in Loving v. Virginia, and it was flatly rejected by the Supreme Court. The argument was made that neither race was discriminated against because both were prohibited and affected in the same way. The Supreme Court rejected that argument, treating the classification as intolerable. So if we follow that logic, it would seem to me we're in the realm of heightened scrutiny based on sex discrimination."

judge-richard-posner.jpgAfter slamming Indiana's arguments as "ridiculous" and "absurd," Posner (left) returned to the subject of marriage discrimination and how it harms the children of same-sex couples. He asked Fischer whether he'd read a brief filed in the Wisconsin case by the Family Equality Council.

"It has a great deal of rather harrowing information about the problems created for children and their parents in the case of same-sex couples not being allowed to marry who have adopted children -- how they feel when they grow up, how what happens when one of their parents dies."

And then the clincher:

"What's on the other side of this scale outweighing these costs? Is there any empirical basis for anything you've said?"


The state of Wisconsin didn't fare any better. In fact, there were several points where Assistant Attorney General Timothy Samuelson couldn't muster any kind of an answer to the judges' withering questions. When he wasn't tongue-tied, Samuelson's defense of Wisconsin's marriage discrimination amendment hinged on two key arguments: that gays and lesbians have always been excluded from marriage, and that the amendment should be upheld out of "deference to the democratic process."

Posner nearly laughed Samuelson's appeals to tradition out of court: "How can tradition be a reason for anything?" he said. "I don't get that. Once again, the Loving case: the tradition of forbidding interracial marriage went back to colonial times. It was 200 years old by the time Loving came along."

Samuelson responded that Loving was a deviation from, rather than a codification of, common law, eliciting incredulity from the court. Posner set him straight:

"Interracial marriage had been forbidden in the colonies and in many, many states... for more than 100 years... so in other words, tradition per se is not a grounds for continuing. 'We've been doing this stupid thing for 100 years, 1,000 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."

Later, Posner called the tradition argument "feeble" and asked whether the state had anything better. He also took issue with Samuelson's contention that the tradition of marriage discrimination is based on "experience."

seventh-circuit-courtroom.jpg"It's based on hate, isn't it?" Posner asked. When Samuelson responded in the negative, Posner replied, "You don't think there's a history of rather savage discrimination against homosexuals in the United States and the rest of the world?"

Judge Posner had similarly little use for Samuelson's appeal to democracy. "That argument doesn't get you very far. Are you really saying there shouldn't be any constitutional invalidation, ever, of a state or federal statute because that's 'anti-democratic'?"

"What would be an example of a statute, passed by a democratically-elected legislature, that you would consider unconstitutional?" Posner asked. Samuelson responded that an amendment banning interracial marriage would clearly be unconstitutional, because of Loving. But Posner wasn't having it:

"You argue that democracy insulates legislation from constitutional invalidation. Now you have to have something better... you accept Loving as governing precedent; why isn't this rather similar? People want to get married, and you don't seem to have any reasons [why they shouldn't]."

And then, if it weren't already abundantly clear which way he'd be voting, Judge Posner tipped his hand:

"What is the rational basis for a legislative choice denying same-sex marriage? We know that these people want to get married; we think, at least I think, it's good for the kids -- what's the offsetting harm? ...These people and their adopted 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 repeatedly attempted to dodge the question, to Posner's great annoyance, but eventually admitted: "Frankly, at this point, we don't know..."

wisconsin-marriage-grumpy-cat.jpgLater a flailing Samuelson got himself twisted into comparing marriage equality with -- get this -- divorce, claiming that divorces "skyrocketed" after the passage of no-fault divorce laws. "But that's fewer marriages, not more marriages," Judge Hamilton interjected.

Samuelson then hypothesized that marriage equality "would potentially devalue the institution of marriage and make fewer people likely to enter into it." Pressed by Posner to explain this head-scratcher, the attorney responded that he didn't expect this question, so he'd have to get back to Posner later with an additional brief. Judge Posner told him not to bother: "How can you brief it when you don't know anything about it?"

Judge Hamilton chimed in, tackling Wisconsin's claim that the state has an interest in promoting childbirths to married couples. Citing government data that shows a "dramatic rise" in births to unwed Wisconsin and Indiana mothers over the past twenty years, he opined,

"It's a little hard to see, if that's as important as you're telling us it is as a policy goal of the state, it's a little hard to see how significant [marriage discrimination] is with the rest of the state's family policies, given those results... it's a pretty unsuccessful policy."

When Samuelson feebly retorted that, successful or not, it's the policy of the state, Hamilton moved in for the kill:

"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."

Game, set, match.


Outside the courtroom, reactions from supporters and opponents of marriage equality were exactly what you'd expect: those in favor of equality were jubilant, those opposed expressed defiant concern. Virginia Wolff, the lead plaintiff in the Wisconsin lawsuit, said she was "very, very hopeful" about the outcome. The Wisconsin and Indiana lawyers, Wolff said, "just couldn't answer [Posner's] questions about what harm [marriage equality] would cause."

Charvonne_Kemp_Marie_Carlson.jpgFellow plaintiffs Charvonne Kemp and Marie Carlson (right) told The Bilerico Project that as parents, they found Judge Posner's concern for their children very moving. "It's nice to see that that point [that marriage discrimination harms children] has gotten through so strongly."

"As a parent, you want the best for your child," Kemp added. "And to hear the judge realize that all we want as parents is to be the best possible parents for our children -- and that just because we happen to be the same gender doesn't mean we can't be good parents -- gives me hope."

Katie Belanger, executive director of statewide LGBT group Fair Wisconsin, said the tone of the judges' questions made her optimistic about a favorable ruling. "It's clear that our opposition's arguments are tired, and the court sees through that. They understand that there is a real harm when we deny caring and committed same-sex couples the freedom to marry."

The pro-equality lawyers were likewise optimistic. Lambda Legal's Camilla Taylor, who argued on behalf of the Indiana plaintiffs, explained why:

"What these marriage cases are really about is getting courts to recognize our common humanity -- that we're all humans with the right to equal dignity. When there's an acknowledgement of that, as we've had today, I think it shows we've reached the point where victory is, if not assured, at least we are headed extremely in the right direction."

"What struck me was the unrelenting focus on the harms [of marriage discrimination] to kids," added James Esseks of the ACLU, who represented the Wisconsin couples. "Today was all about how these kids are being harmed by their parents not being married, and what possible reason there could be for inflicting that kind of harm on kids. Neither state had any real answer to that question."

For her part, Julaine Appling -- president of the rabidly homophobic group Wisconsin Family Action, which spearheaded the campaign to pass the Badger State's marriage discrimination amendment -- was in a decidedly less happy mood. Speaking about marriage equality advocates, she told reporters, "They run to the courts whenever they want, rather than go to the people for the final say on this issue."

Bitter? Perhaps. But if I'd been spanked as hard as her side was today, I'd be bitter too.

Indiana Audio

Wisconsin Audio

Audio via Freedom to Marry.
Photo of courtroom entrance by The Bilerico Project.
Wisconsin marriage grumpy cat image by Richard Hawkins.
Image of Kemp and Carlson via the ACLU.

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