Tactful is no way to describe a federal appeals court ruling striking down attempts by Wisconsin and Indiana to confine marriage to one man and one woman. Richard Posner, a Republican jurist appointed by President Reagan, skewered the states’ defense of their marriage restrictions, suggesting in oral argument in the Wisconsin case was “based on hate.”
The ruling, which was handed down on Thursday by the 7th United States Circuit Court of Appeals, was powerfully worded. Posner stopped short of referring to the states’ marriage restrictions were repugnant. Instead he wrote that they were colored by the fact that homosexuals are “among the most stigmatized, misunderstood and discriminated-against minorities in the history of the world.”
The ruling by the 7th Circuit in Chicago was the third such circuit court to accept same-sex marriages. The 10th Circuit Court Appeals in Denver invalidated state restrictions in Utah and Oklahoma, and the 4th Circuit in Richmond struck down Virginia’s law. No circuit court has opposed same-sex marriage.
Altogether 19 federal courts have ruled in favor of same-sex marriage rights in the one year since the United States Supreme Court overturned a key portion of the federal Defense of Marriage Act. Only one court, in Louisiana, took the opposite view. (The Louisiana ruling is posted separately.)
In his ruling, Posner sidestepped the question of whether the states’ prohibition of same-sex marriage violates a fundamental constitutional right protected by the due process clause of the 14th Amendment. He said there was no need to raise that constitutional issue because the record was so clear that Wisconsin and Indiana had no reasonable basis for banning same-sex marriage.
“The grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible,” Posner wrote in his ruling.
One of the main issues facing the court was the states’ assertion that it is permissible to restrict marriage to heterosexual couples. These couples, at least in theory, can produce children. (The states conceded that not all heterosexual couples are willing or able to procreate.) A state has a legitimate interest in using marriage laws to channel an unintentional birth into a relationship in which both parents accept responsibility for raising the child. Absent marriage, these births can create unwanted children and tax the state's welfare and child support systems.
Posner felt that explanation failed.
“The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction … is so full of holes that it cannot be taken seriously,” the judge wrote.
Posner pointed out that while the states have a legitimate interest in the problem of unwanted pregnancy, they have adopted a policy that is overly broad and “an insidious form of discrimination.” Since same-sex couples cannot reproduce biologically, how does that achieve the state's goal of deterring out-of-wedlock births?
“Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to marry,” Posner wrote. “Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”
On the flip side, when same-sex couples adopt unwanted children, the state benefits. Posner argued that if a state is seriously interested in promoting stable family life, it should extend marriage to same-sex couples.
Indiana currently allows joint adoption by same-sex couples. “But an unmarried homosexual couple is less stable than a married one, or so at least the state's insistence that marriage is better for children implies,” Posner wrote sarcastically.
Wisconsin has a domestic partnership law, but it “has thrown a crumb to same-sex couples” by extending minimal rights, Posner wrote. For instance, domestic partners are banned from joint adoption of children.
As for the states’ argument that heterosexual marriage is a time-honored tradition, Posner wrote that not all traditions are valid. He pointed to Virginia’s colonial and post-Reconstruction bans on interracial marriage, a tradition that the United States Supreme Court struck down as unconstitutional in 1967 in Loving v. Virginia. Moreover, citing tradition is shaky ground. For much of civilization’s history, the traditional marriage was polygamous; polygamy remains valid in eight Middle Eastern nations, including Egypt, Iran and Iraq, the judge noted.
Interestingly, neither Indiana nor Wisconsin raised the argument that recognizing same-sex marriage undermines conventional marriage. That argument had been raised in cases elsewhere, and it has proven to be a nonstarter.
In the oral argument on August 26, Posner peppered Wisconsin's attorney, Timothy Samuelson, with questions asking him to offer a constitutionally sufficient justification for why his state denies equal marriage rights to same-sex couples. Samuelson tried to defend Wisconsin's law on the theory that it is rooted in tradition. The tactic did not work.
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? There was a tradition of not allowing blacks 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 all all, your honor.
Posner: You don’t think there's a history of rather savage discrimination against homosexuals?
Posner is the most widely known legal scholar in the federal appeals court system. His rulings reflect his deep interest in the intertwining of the law and public policy. He began has judicial career as a strong conservative but over the years has emerged as a pragmatist. In July 1912, he told an interviewer, “I’ve become less conservative since the Republican Party started becoming goofy.”
He also is known for his incisive writing and has urged his colleagues to follow suit. Crisp rhetoric aids a judge’s application of legal principles and makes the rulings more easily interpreted by citizens and legal professionals, Posner says.
In this ruling, Posner cited sociological data, scholarship and even the philosopher John Stewart Mill to flesh out his conclusions. With this abundance of sources, it’s not surprising that Posner found little use for the anti-equality issues raised by Indiana and Wisconsin. The 40-page ruling came only nine days after the judges heard oral argument—an extraordinarily fast pace.
Joining in the ruling were Judges Anne Claire Williams, who was nominated by President Bill Clinton, and David Hamilton, chosen by President Obama.
The losers in this case likely will join the losers in the other appellate court rulings in asking the Supreme Court for a definitive decision on same-sex marriage. The court is expected to accept the question when it begins its new term on October 1. The justices would evaluate legal briefs from all parties and then hear the lawyers’ arguments in the courtroom. The justices’ decision would be handed down sometime before June 30, 2015.
One trigger for the Supreme Court to become involved is the fact that Posner’s opinion differs quite a bit from those found in the two appeals court rulings that were decided previously. As Lyle Denniston, of SCOTUSblog, pointed out, Posner’s ruling “had as much philosophical and sociological content as legal analysis.”
Posner decided the Wisconsin and Indiana cases on the grounds of discrimination. He did not join the other circuit courts (and most lower courts) in raising the issue of whether bans on same-sex marriage violate a fundamental right: namely, that the Constitution entitles same-sex couples to the same due process protections as opposite-sex couples have.
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| Judge Richard Posner |
Altogether 19 federal courts have ruled in favor of same-sex marriage rights in the one year since the United States Supreme Court overturned a key portion of the federal Defense of Marriage Act. Only one court, in Louisiana, took the opposite view. (The Louisiana ruling is posted separately.)
One of the main issues facing the court was the states’ assertion that it is permissible to restrict marriage to heterosexual couples. These couples, at least in theory, can produce children. (The states conceded that not all heterosexual couples are willing or able to procreate.) A state has a legitimate interest in using marriage laws to channel an unintentional birth into a relationship in which both parents accept responsibility for raising the child. Absent marriage, these births can create unwanted children and tax the state's welfare and child support systems.
Posner felt that explanation failed.
On the flip side, when same-sex couples adopt unwanted children, the state benefits. Posner argued that if a state is seriously interested in promoting stable family life, it should extend marriage to same-sex couples.
Indiana currently allows joint adoption by same-sex couples. “But an unmarried homosexual couple is less stable than a married one, or so at least the state's insistence that marriage is better for children implies,” Posner wrote sarcastically.
Wisconsin has a domestic partnership law, but it “has thrown a crumb to same-sex couples” by extending minimal rights, Posner wrote. For instance, domestic partners are banned from joint adoption of children.
As for the states’ argument that heterosexual marriage is a time-honored tradition, Posner wrote that not all traditions are valid. He pointed to Virginia’s colonial and post-Reconstruction bans on interracial marriage, a tradition that the United States Supreme Court struck down as unconstitutional in 1967 in Loving v. Virginia. Moreover, citing tradition is shaky ground. For much of civilization’s history, the traditional marriage was polygamous; polygamy remains valid in eight Middle Eastern nations, including Egypt, Iran and Iraq, the judge noted.
Interestingly, neither Indiana nor Wisconsin raised the argument that recognizing same-sex marriage undermines conventional marriage. That argument had been raised in cases elsewhere, and it has proven to be a nonstarter.
In the oral argument on August 26, Posner peppered Wisconsin's attorney, Timothy Samuelson, with questions asking him to offer a constitutionally sufficient justification for why his state denies equal marriage rights to same-sex couples. Samuelson tried to defend Wisconsin's law on the theory that it is rooted in tradition. The tactic did not work.
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? There was a tradition of not allowing blacks 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 all all, your honor.
Posner: You don’t think there's a history of rather savage discrimination against homosexuals?
Posner is the most widely known legal scholar in the federal appeals court system. His rulings reflect his deep interest in the intertwining of the law and public policy. He began has judicial career as a strong conservative but over the years has emerged as a pragmatist. In July 1912, he told an interviewer, “I’ve become less conservative since the Republican Party started becoming goofy.”
One trigger for the Supreme Court to become involved is the fact that Posner’s opinion differs quite a bit from those found in the two appeals court rulings that were decided previously. As Lyle Denniston, of SCOTUSblog, pointed out, Posner’s ruling “had as much philosophical and sociological content as legal analysis.”
Posner decided the Wisconsin and Indiana cases on the grounds of discrimination. He did not join the other circuit courts (and most lower courts) in raising the issue of whether bans on same-sex marriage violate a fundamental right: namely, that the Constitution entitles same-sex couples to the same due process protections as opposite-sex couples have.