QUEER QUOTE: 7th Circuit Panel Eviscerates IND. & WIS. Arguments Against Marriage Equality

Today's Queer Quote comes from Tuesday's oral arguments before the 7th U.S. Circuit Court of Appeals in marriage equality cases from Wisconsin (Wolf v. Walker) and Indiana (Baskin v. Bogan) where the three judge panel, which included the eminent jurist Richard Posner, completely demolished the states' arguments for their bans on marriage equality.

Posmer is a conservative judge and the intellectual lodestar of a form of jurisprudence that combines economics and conservative legal principles. He does not countenance fools lightly, and he savaged the lawyers making post hoc arguments to defend their states' marriage bans (when everyone knows that it was animus against gender-variant behavior that is at the root of these laws).

These excerpts, provided by Professor Josh Blackman, are today's Queer Quote:

Posner: What concrete factual arguments do you have against homosexual marriage?
Samuelson: Well, we have, uh, the Burkean argument, that it’s reasonable and rational to proceed slowly.
Posner: That’s the tradition argument. It’s feeble! Look, they could have trotted out Edmund Burke in the Loving case. What’s the difference? [Note: Loving v. Virginia was a 1967 decision striking down bans on interracial marriage] . . . There was a tradition of not allowing black and whites, and, actually, other interracial couples from marrying. It was a tradition. It got swept aside. Why is this tradition better?Samuelson: The tradition is based on experience. And it’s the tradition of western culture.
Posner: What experience! It’s based on hate, isn’t it?Samuelson: No, not at all, your honor.
Posner: You don’t think there’s a history of rather savage discrimination against homosexuals?

Ouch! But, wait, there's more!

• “These people and their adopted children are harmed by your law,” Judge Richard Posner said of gay and lesbian couples who are barred from getting married. “The question is what is the offsetting benefit of your law. Who is being helped?”

• Wisconsin Assistant Attorney General Timothy Samuelson responded that society as a whole benefited by preserving marriage as it has long been defined. Posner pressed on, asking if anyone would be harmed if same-sex couples were allowed to be married.

• But Posner expressed skepticism of the idea that the states were trying to promote procreation. “You allow all these sterile couples to get married,” he said. “Why are you doing that if you’re so interested in procreation?”

• Posner, who at times appeared to lecture the attorneys defending the bans, focused on the ability of same-sex couples to adopt children. He noted adopted children would benefit if their parents could claim the tax breaks and other perks of being married.

• “These children would be better off if their parents could marry, no? It’s obvious,” Posner said.

• “Why do you prefer heterosexual adoption to homosexual adoption?” Judge Posner, appointed to the bench by President Reagan, asked. When Fisher began responding that the marriage laws were unrelated to adoption, Posner was almost vitriolic in his response, saying of the state’s treatment of the children of same-sex couples, “You want them to be worse off.”

• At different times, Posner referred to Fisher’s arguments as “pathetic,” “ridiculous,” and “absurd.”

• “How can tradition be the reason?” he asked, mocking the answer by responding that saying “we’ve been doing a stupid thing” for a long time certainly wouldn’t be enough of a justification to uphold a law or practice.

 And this basically encapsulates why so many federal judges are ruling against state bans on marriage equality. There's no benefit to heterosexuals and there is clearly defined harm to same-sex couples (and their children).

Posner is described as the most cited legal theorist of the 20th century. Most observers expect a unanimous ruling from the 7th circuit upholding the lower court's judgments that state bans on marriage equality are unconstitutional under the federal constitution.