8/26/2014 2:19:00 PM,
CHICAGO (CN) - During oral arguments Tuesday on the constitutionality of Indiana's and Wisconsin's bans on same-sex marriage, 7th Circuit Judge Richard Posner demanded that attorneys distinguish their states' laws from a "savage history" of discrimination "based on hate," akin to racial segregation, which hurts children.
A three-judge panel of the 7th Circuit heard oral arguments today in twin cases: Wolf v. Walker, a federal suit challenging Wisconsin's refusal to provide marriage licenses to same-sex couples, and Baskin v. Bogan, a challenge to Indiana's ban on same-sex marriage.
The panel beleaguered defense attorneys who struggled to distinguish their states' laws from invalidated laws against interracial marriage, and asked them to explain why the adopted children of same-sex couples should be underprivileged.
The plaintiffs were often flustered as well, unable to explain why their demands would stop at same-sex couples and not include polygamists.
Indiana Deputy Attorney General Thomas Fisher said that marriage is meant to "nudge" opposite-sex couples toward stable relationships, to benefit children.
"All this is a reflection of biology: men and women make babies; same sex couples do not. It's purely utilitarian," Fisher said.
Posner dismissed this out of hand, saying it included the "ridiculous idea that two 80-year-old cousins marrying will be a model for young couples."
He mentioned "harrowing" information from the Family Equality Council on the consequences for adopted children.
"You permit homosexual couples to adopt. Wouldn't it be better for the adopted children if their parents were married?" Posner asked.
Fisher tried to finesse the question, but Posner repeated it two to three times before the attorney responded with an incensed: "I don't know! It's up to the Legislature."
"Think back to when you were six," Posner insisted, asking again whether it was better for children that their parents be married, rather than hearing: "'Your parents aren't allowed to be married.' What's better for the child? Don't you have an opinion?"
"No!" Fisher huffed.
But Posner did not relent.
"Do you criminalize fornication? Would you like to?" Posner asked. "And why do you prefer heterosexual adoption?"
"We don't," Fisher responded.
"Of course you do!" Posner said, pointing out tax benefits and other benefits that married heterosexual couples receive.
"Do you want kids adopted by homosexual parents to be worse off?"
Judge Ann Claire Williams cut in: "I don't think you're gonna answer Judge Posner's question," and the courtroom dissolved in laughter.
When Wisconsin Assistant Attorney General Timothy Samuelson took the floor, he cited "tradition" as a reason for Wisconsin's ban.
"The tradition is based on experience ... on Western culture," Samuelson said.
"It's based on hate! Don't you agree that there has been a savage history?" Posner asked.
Samuelson pointed out that Wisconsin was the first state to prohibit employment and housing discrimination on the basis of sexual orientation.
"Why draw the line at marriage?" Posner asked.
Samuelson mentioned "legislative choice" and the "democratic process."
"Are you arguing that democracy insulates laws from constitutional validation?" Posner asked. "What's the rational basis? The offsetting harm?"
"Respectfully ..." Samuelson began.
"Come on!" Posner interjected. "What's the offsetting benefit to harm to kids? Who's helped?"
"How? How does it hurt heterosexual marriage? How does it hurt children?"
"We don't know yet."
"You could say that with Loving! Or, say, if we let women have access to contraception," Posner said, referring to the 1967 Loving v. Virginia case, in which the U.S. Supreme Court invalidated laws against interracial marriage.
Comparisons with Loving came up again and again.
"The argument you're making is exactly what was rejected in Loving," Judge David Hamilton said.
At one point, Samuelson said: "I think Loving was a deviation from the common law."
Without missing a beat, Hamilton thundered: "What?!"
The courtroom was briefly silent.
"The yellow light is on," Samuelson said, after Loving was brought up again.
Judge Williams offered no reprieve: "It won't save you," she said. The courtroom burst into laughter again.
"Why do you allow joint adoption by homosexual couples?" Posner demanded for the umpteenth time.
"I can't speak to that," Samuelson said.
"Something bad might happen? What?"
"The possibilities are, we don't know."
"You can't guess?"
Samuelson said that it might "devalue the institution of marriage," but could not explain why fewer heterosexuals would marry if homosexuals could.
"I haven't briefed this" was his slogan of the day.
Judge Hamilton was unrelenting as well.
"This is a reverse-engineered theory to explain marriage to avoid Lawrence and a good deal of history," he said, citing Lawrence v Texas, the 2003 case in which the U.S. Supreme struck down a Texas law against same-sex sex.
The panel seemed more persuaded by the plaintiffs' arguments, but demanded more specificity than the lawyers could provide.
"What is the fundamental right you advocate?" Hamilton asked.
"Where do you draw the line?" Posner added. "What is the objection to polygamy?"
The Indiana plaintiffs' attorney, Camilla Taylor, struggled with this, and Hamilton characterized her answers as sounding "an awful lot like the arguments versus gay marriage."
Taylor then restated what was implicit in Posner's critiques: "We want a child to be able to grow up knowing his family receives the same respect as other families." Later, she noted that "the state would have to assert a sufficient governmental interest" in banning polygamy.
Her Wisconsin counterpart, James Esseks, stumbled over this as well, saying that "three people or four people" together would not "look like marriage."
Esseks said that the limiting principle would be found in Lawrence, which refers only to relations between pairs of people.
Esseks closed forcefully, saying that anti-gay marriage laws "say to same-sex couples that their relationships are second class. They humiliate the children of same-sex couples."