The Gaily Grind: 7th Circuit Court of Appeals Destroy Anti-Gay Marriage & Adoption Arguments

The 7th Circuit Court of Appeals heard oral arguments in legal challenges to Indiana and Wisconsin’s marriage bans today, where federal judges have already struck down anti-gay marriage laws.

A three-judge panel comprised of judges Richard Posner, Ann Claire Williams, and David F. Hamilton heard arguments from both sides.

When Wisconsin Assistant Attorney General Timothy Samuelson pointed to ‘tradition’ as the main justification for banning gay marriage, Judge Posner fired back with: “It was tradition to not allow blacks and whites to marry — a tradition that got swept away,” Posner said. Prohibition of same sex marriage, he said, is “a tradition of hate … and savage discrimination.”

Key quotes from the hearing via Freedom to Marry:

Judge Posner: “Suppose you’ve been adopted by same-sex parents and you come home one day from school and you say, ‘You know, all of the other kids in class have a mom and a dad. I just have two moms or two dads – what’s that about?’ And suppose the parents say, ‘In our society, an adult can marry a person of the opposite sex or a person of the same sex. But it’s marriage in both cases – your classmates’ parents are married, your parents are married. There’s nothing to worry about.’ Contrast that with the same situation, but the parents have to say, ‘Well, we’re your parents, but we’re not allowed to be married.’ It’s just a difference. Which do you think is better for the psychological welfare of this child – the married same-sex couple or the unmarried couple?’”

Judge Hamilton: “I’d like to follow up on this question about intended pregnancies. You said in your brief that ‘Marriage attracts and then regulates couples whose sexual conduct may create children in order to ameliorate the burden society ultimately bears when unintended children are not properly cared for.’ Why is that burden limited to unintended children? When we talk about intended prengancies, that may be a fleeting intent. I would think that the state’s interest is equal whether the children or intended or unintended.”

Judge Posner: “Why do you prefer heterosexual adoption to homosexual adoption? Of course you do: You give all sorts of benefits to the heterosexual adoptive parents and no benefits for the homosexual adoptive parents. You have to have a reason for that.” Solicitor General Fischer: “The benefits that you’re talking about are not triggered by sexuality – they’re triggered by marital status.” Judge Posner: “Oh come on now, you’re going in circles.”

Judge Williams: “Would you agree that marriage is not just about having children, but about raising children? You agree, those are two components?” Fischer: “Yes.” Judge Williams: “Then are you saying that same-sex couples cannot successfully raise children?” Fischer: Absoltuely not. Judge Williams: “Well if Indiana’s law is about successfully raising children, and you agree that same-sex couples can successfully raise children, why shouldn’t the ban be lifted as to them?” Fischer: “I think the assumption is that with opposite-sex couples, there is very little thought given during the sexual act sometimes as to whether babies may be a consequence.” Judge Williams: “So, because gay and homosexual couples actually choose to be parents, choose to take on that obligation, that difference of choice is set up differently than accidental?