Because Judge Richard Posner of the 7th Circuit Court was appointed by Ronald Reagan, he is usually describes as a conservative judge. He’s better described as an unusually smart, articulate, thoughtful and courageous judge, and in responding to oral arguments lawyers for Wisconsin and Indiana defending their state’s marriage bans, he proved it.
I have frequently attempted to draw a distinction between those guided by archaic religious morality that causes them to regard same-sex marriage as sinful, and the attempt to use the government, which must not be guided by religion to make such marriages illegal. Morality doesn’t have to be defended by logic—God works in mysterious ways, you know—but laws do. A complete evisceration emanating from a place of authority of the specious and often absent reasoning behind gay marriage bans was much needed, and knowing that he risked criticism as a “judicial bully” for doing so with gusto, Judge Posner came through.
Here is a sampling of the barrage he placed on Indiana Solicitor General Thomas Fisher and Wisconsin’s assistant attorney general Timothy Samuelson:
- Samuelson, trying to play to Posner’s presumed conservative soul, cited conservative deity Edmund Burke, justifying state opposition to gay marriage with “the Burkean argument, that it’s reasonable and rational to proceed slowly.” Posner was unimpresed, calling the point “feeble.” “Look, they could have trotted out Edmund Burke in the Loving case [The 1967 SCOTUS decision striking down bans on interracial marriage]. What’s the difference? . . . 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 dug himself deeper, saying, “The tradition is based on experience. And it’s the tradition of western culture.” Posner sneered, “What experience? It’s based on hate, isn’t it?” The lawyer denied it, whereupon Posner responded, “You don’t think there’s a history of rather savage discrimination against homosexuals?”
- Posner homed in on the impediments created for same-sex couples who adopt children. Observing that such children would benefit if their parents got the benefit of the breaks and other legal marital benefits, he asked, “These children would be better off if their parents could marry, no? It’s obvious.”
- Posner noted the documented psychological stress suffered by the adopted offspring of unmarried same-sex couples, like wondering why their schoolmates’ parents were married and theirs were not. “What horrible stuff,” Posner said. What benefit to society could possibly be gained in barring gay marriage, he asked, that “outweighs that kind of damage to children?” “These people and their adopted children are harmed by your law,” Posner said of same sex couples. “The question is what is the offsetting benefit of your law. Who is being helped?” Samuelson offered the generality that “society as a whole” benefited by preserving marriage as it has long been defined. Posner asked if anyone would be harmed if same-sex couples were allowed to marry. He did not get an answer, because there isn’t one, but you would think the lawyers would have had an answer to it prepared.
- Posner mocked the the states’ claims that they were trying to “promote procreation”—you don’t need to be a brilliant jurist to kill this argument, because it is ridiculous— saying sharply, “You allow all these sterile couples to get married. Why are you doing that if you’re so interested in procreation?”
- Later, he was more direct, asking, “Why do you prefer heterosexual adoption to homosexual adoption?” Fisher protested that the marriage laws were unrelated to adoption, and Posner cut him off. “You want them to be worse off!” he said.
It goes on. It would be painful to listen to lawyers being used to mop the courtroom floor like this, if the exercise wasn’t so important and revealing. Neither attorney had a compelling or persuasive argument; either they were unprepared, didn’t have the heart to do their jobs zealously, or there just aren’t good legal arguments to support the contention that these bans are constitutional. I suspect the latter is the case.
At Slate, Mark Joseph Stern has collected sound excerpts from the oral argument: Posner’s rebukes are even tougher when they are heard. All adamant opponents of same sex marriage are obligated, I think, to listen to at least these exchanges (the entire oral argument would be better) and honestly assess whether they have any rebuttals that would satisfy the judge, or the principles of fairness and logic.
If the only rebuttal available is “God says so,” I can respect that, but not as it applies to legislation. If one’s religion directs that you not associate with gays, that’s fine: you have that right. You have the right not to like them, and not to think nice things about them, and and not to watch “Modern Family.” You even have the right to support unconstitutional measures restricting their rights, but doing so isn’t ethical. Setting out to harm gay Americans isn’t ethical, and in most situations, it is quite properly illegal. If it isn’t illegal, then it’s just cruel, and Posner does his nation and culture a service by making this undeniable.
The Supreme Court, which may well be occupied by several individuals who don’t like gays either—because God tells them so—almost certainly will follow Posner’s lead and ban the bans. At that point, it would be good for the country, our society, gays and their families for the vocal anti-gay marriage advocates to store their objections where they always belonged: in their own churches, none of which are compelled to embrace same sex unions, and in their own minds, understanding the fact that any overt discrimination—actions are unethical, opinions and beliefs are not–is indefensible.
Posner, from a position of authority and influence, made that crystal clear.