News & Commentary

By Shawn Johnson

Indiana and Wisconsin officials found themselves on the defensive at the U.S. 7th Circuit Court of Appeals on Tuesday as they advocated for bans on same-sex marriage. Moments after he began his oral argument, Indiana Solicitor General Thomas M. Fisher was interrupted by Judge Richard Posner, who pressed Fisher on his contention that Indiana’s ban on gay marriage stems from “governmental concern” over the birth of unintended children. Posner noted that many of these children were born to unmarried women and adopted by same-sex parents. Why, he asked, should those children not have married parents and all of the benefits such families enjoy? “Which do you think is better for the psychological health, for the welfare of this child: to have the married same-sex parents or the unmarried?” Posner asked. Fisher said he didn’t “feel like it's my job to answer.” “It’s a matter of indifference to you,” Posner retorted. That’s how the 90 minutes of oral argument went in the packed courtroom. Indiana and Wisconsin are appealing federal court decisions that found their bans unconstitutional. On Tuesday, their attorneys focused on the states’ needs to regulate marriage as an institution, one linked directly to the ability to have children. The three-judge appellate panel hearing the case will rule later. So far, appellate courts in the 10th and 4th circuits have rejected state bans in Virginia, Utah and Oklahoma. The U.S. Supreme Court is expected to resolve the issue. Gay marriage is legal in 19 states and the District of Columbia. lRelated Indiana same-sex marriages suspended while appeals play out Fisher, along with Wisconsin Assistant Atty. Gen. Timothy C. Samuelson, spent most of the morning on the defensive as Posner and Judges David Hamilton and Ann Williams pushed for answers about why same-sex couples should be treated differently from heterosexual couples and what harm lifting the state bans would do. Fisher noted his concern about linking parental rights to marriage rights. “If marriage rights follow parental rights, we are looking at plural marriages,” he said. Later, the judges asked plaintiffs’ attorneys how they would define marriage and what limitations could be put on it. Camilla Taylor, Lambda Legal’s national marriage project director, was pushed by Williams — an appointee of President Clinton — on whether polygamy would become legal. “That is a big position your opponents take,” Williams said. “In terms of what are the limits, in terms of how you define marriage, what are the boundaries?” When Taylor said the state would have to change laws to accommodate polygamy, Hamilton, who was appointed by President Obama, said that “the argument against polygamy sounds an awful lot like the arguments against gay marriage.” Williams pressed Fisher on whether his “fundamental problem” was that gay marriage is a transgression against social norms. Fisher said no. “Men and women make babies and same-sex couples do not,” he said. “And we have to have a mechanism for dealing with those babies, and marriage is that mechanism.” Samuelson repeatedly used the word “tradition,” leading the judges to ask what he meant. “Tradition is based on experience,” Samuelson said. Posner called the argument “feeble.” “What if men stopped shaking hands?” Posner asked with slight sarcasm. “Right. It’s the end of the nation.” Later, when Samuelson again linked tradition to experience, Posner said, “It’s based on hate.... You don’t think there is a history of rather savage discrimination against homosexuals in the states and the world?” Posner, joined by Williams, repeatedly asked what the harm was in allowing same-sex couples to marry. At one point, Samuelson said he did not know whether there was harm, and at another he cited a need to take a “reasonable, prudent response” to changing social norms. Hamilton asked Samuelson to reflect on the notion that marriage is a way to promote childbirth and to keep couples together. He quoted statistics highlighting the increasing number of births to single mothers in Indiana and Wisconsin. “I assume you’re familiar with how that’s been working out in practice over the past 25 or 30 years,” the judge said. Mike Dean, an attorney for Wisconsin Family Action, said he came away from oral arguments thinking the court was uninterested in hearing the group’s rationale that a child should be raised with a mother and a father. “Does a law exist to make people feel better?” Dean asked. “That is their choice, but to go and say that therefore society as a whole must agree that relationship is the same as a heterosexual marriage, that is a step that cannot be taken.” One of the Indiana plaintiffs, Amy Sandler, is raising two children with her spouse, Niki Quasney. “I’m hopeful,” Sandler said. “I felt it was moving in the direction of the rest of the country.” Sandler and Quasney wed in Massachusetts a year ago, and their marriage is the only gay marriage Indiana recognizes. The federal appeals court issued an emergency ruling ordering the state to recognize it because Quasney is battling Stage 4 ovarian cancer. Sandler reflected on how the ban had affected their lives. She gave birth to their second daughter in 2013 in Chicago, driving about 20 miles in a snowstorm the day she went into labor because Indiana would not put Quasney’s name on the birth certificate, she said. And in the last five years, as Quasney has fought her cancer, she has twice driven herself to Chicago emergency rooms because the closest Indiana hospital would not recognize them as married and grant Sandler the same rights as a heterosexual spouse. The accommodations they must make to be treated as a couple prompted them to join the lawsuit, Sandler said. “It takes away from our quality of life with our family. It takes away time from our children,” Sandler said. “Every minute Niki and I get to spend together, every minute Niki gets to spend with our children.... Every minute counts.”

  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?"      "Society!"      "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."

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 oth

On Tuesday the 7th Circuit Court of Appeals in Chicago will hear arguments over Wisconsin and Indiana's bans on gay marriage. In June U.S. District Judge Barbara Crabb f

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Federal appeals judges bristled on Tuesday at arguments defending gay marriage bans in Indiana and Wisconsin, with one Republican appointee comparing them to now-defunct laws that once outlawed weddings between blacks and whites.

CHICAGO — Federal appeals judges bristled on Tuesday at arguments defending bans on same-sex marriage in Indiana and Wisconsin, with one Republican appointee comparing them to laws, now defunct, that once outlawed weddings between blacks and whites.

CHICAGO (AP) — Federal appeals judges bristled Tuesday at arguments defending gay marriage bans in Indiana and Wisconsin, with one Republican appointee comparing them to now-defunct laws that once outlawed weddings between blacks and whites.