A panel of three judges of the U.S. Court of Appeals for the 7th Circuit, based in Chicago, gave a very rough time to attorneys from the states of Indiana and Wisconsin on August 26 during oral arguments about marriage equality appeals from those states. Three district court rulings from Indiana and one from Wisconsin issued earlier in 2014 had found unconstitutional those states’ refusal to allow same-sex couples to marry or to recognize their marriages contracted in other jurisdictions, and the states had appealed. Indiana Solicitor General Thomas M. Fisher and Wisconsin Assistant Attorney General Timothy C. Samuelson probably anticipated tough questioning from Democratic appointees Ann Claire Williams and David Hamilton, but one suspects they were not anticipating the kind of tough cross-examination they got from Richard Posner, the most senior member of the panel who was appointed to the court by President Ronald Reagan back in the 1980s.
Judge Posner, a father of the law-and-economics movement and a devoted empiricist, actually mocked the arguments he was getting from the state attorneys, but anyone who has been following the trend of marriage equality decisions over the past year might have predicted this result in light of Posner’s record of relentlessly pursuing facts and logic in his decisions. Posner pressed both attorneys for some reason why neither state would allow or recognize same-sex marriages. Referring to data showing that about 250,000 children nationwide are living with gay adoptive parents, about 3,000 of whom are in Indiana, he pressed Fisher for a reason why Indiana would deny those children the same rights and security of having married parents that are accorded to the adopted children of married couples, and Fisher could give him no real answer.
Wouldn’t it help those children if their parents could marry, asked Posner? What’s better for the welfare of these children — that their parents be allowed to marry or prevented from marrying? Posner’s insistent questions followed up on Supreme Court Justice Anthony Kennedy’s comment in his opinion for the Court in U.S. v. Windsor about the way denial of marriage to same-sex couples humiliates their children, who are being told by the state that their families are second class and not worthy of marriage.
Fisher insisted, as virtually the sole justification for Indiana’s marriage ban, on a state interest in making marriage available to different-sex couples so that their children would be tied to their biological parents in stable families. But, having conceded that the state’s interest extended to the families in which children are raised, he could not satisfactorily answer questions from all three judges about how excluding same-sex couples from marriage advanced that interest. If you let gay people adopt, asked Posner, why not let their children have the same benefits?
Fisher’s response – that same-sex couples can only get children intentionally and don’t need to be “nudged” into marrying – seem puny. Posner also pointed out the large number of children in foster care who needed adoptive parents and asked whether letting same-sex couples marry would lead to more adoptions. Fisher disclaimed knowledge about such a result, but Posner, the law-and-economics expert, suggested that it is less expensive for married couples to adopt than for unmarried couples to adopt precisely because of all the benefits that accompany marriage.
Judge Hamilton, seizing upon an argument in Indiana’s brief claiming that the state’s marriage statute did not discriminate based on sexual orientation, seemed to throw Fisher into a panic by suggesting that the state was conceding that its law classified based on sex and was thus subject to heightened scrutiny under the Equal Protection Clause. Virtually all judges seem to agree that if heightened scrutiny is used, bans on same-sex marriage are doomed to fail.
Samuelson did not fare much better arguing for Wisconsin. He contended that the due process clause was a source of negative rights but not positive rights, and asked the court to consider whether Wisconsin is required to have a marriage law at all. He suggested that if Wisconsin repealed its marriage law and substituted domestic partnerships, nobody would have cause for complaint because, in his view, the Due Process Clause does not contain an affirmative right to marry. He argued that all the prior Supreme Court marriage cases were concerned with negative rights, not affirmative rights, in that the Court was striking down instances in which the state had interfered with existing marriage rights. The judges did not seem impressed by this argument and gave it short shrift.
During Samuelson’s argument on behalf of Wisconsin, Judge Posner really cut to the chase. As Samuelson blundered on about tradition and “Burkean values” Posner finally asked, “Isn’t this based on hate?” and referred to the history of “savage discrimination” against gay people, including discrimination by government. Samuelson countered by pointing out that Wisconsin was the first state to pass a statute banning discrimination because of sexual orientation in housing, employment and public accommodations. Posner responded, “Why draw the line there?” Why not cease discriminating in marriage? To Samuelson’s response that this was a matter of “legislative policy,” Posner said, “Give me a rational basis for that legislative policy,” but Samuelson could not.
What did distinguish the 7th Circuit argument from the approaches of the 10th and 4th Circuit courts of appeals, which ruled in marriage equality cases over the summer, was that the judges seemed more inclined from their questioning and comments to treat this as an Equal Protection case rather than a case about a fundamental right to marry. They pressed the attorneys from plaintiffs — Lambda Legal’s Camilla Taylor, the Indiana ACLU’s Kenneth Falk, and the National ACLU LGBT Rights Project’s James Esseks – for some limiting principle by which to described a constitutional right to marry. Would that endanger laws forbidding incest, first-cousin marriages, polygamy? Esseks came back with the strongest answer, pointing to Justice Kennedy’s description of the liberty encompassed by the Due Process Clause in his opinion for the Court in Lawrence v. Texas, the 2003 decision striking down that state’s homosexual sodomy ban. Kennedy listed the right to select a marital partner as one of the fundamental rights within the scope of constitutionally-protected liberty, and commented, to the outspoken chagrin of Justice Scalia, that homosexuals had the same liberty interest. Scalia’s dissent asserted that once the Court had eliminated tradition and moral disapproval as grounds for adverse treatment of gay people, there seemed no basis to deny gay people the right to marry. His comment has been noted by many of the federal trial judges who have struck down marriage bans in recent months.
Most of the questioning for the plaintiffs’ attorneys focused on how to describe the liberty interest and where to find limiting principles for it. Hamilton particularly suggested that equal protection provided the stronger argument for plaintiffs, since the discriminatory purpose and effect of the marriage bans was clear. Esseks made a strong pitch for the court to use heightened scrutiny if it decided the case using an equal protection theory, but the judges seemed unreceptive. Judge Williams suggested that the concept of “heightened scrutiny” was not helpful. To her, the issue was whether the challenged laws caused harm, and whether there was some balancing benefit to the state that justified the harm. Her questioning suggested that she understood the harms very well, but that attorneys for the states were unable to name any concrete benefits associated with these bans.
During Fisher’s brief rebuttal argument, Judge Posner came back to his issue of children of adoptive parents, pushing Fisher again to give a reason for denying them benefits, and asking how the marriage ban could possibly advance the state’s interests. Do you really believe that you get less extramarital sex by pushing heterosexuals to marry, he asked. You let all these sterile people marry, he commented. Are they supposed to be role models for channeling procreation? He characterized this argument as ridiculous.
Posner asked Fisher whether he read the amicus brief filed by the Family Equality Council, which was devoted to relating the stories of harms incurred by children whose parents were not allowed to marry. Fisher claimed to have read it but not remembered it. Posner referred to the “harrowing information” about problems created for children raised by couples forbidden to marry, the misfortunes they suffered, and asked incredulously whether Fisher was not moved by that. He also asked whether Fisher had any empirical basis for anything he had said, in a void dripping with sarcasm.
It was hard to imagine that either of the appellant states are going to win even one vote from this panel, if the judges vote along the lines suggested by their questions and comments during the oral argument.