CHICAGO — Lawyers for Indiana and Wisconsin on Tuesday tried, with little success, to explain to three judges why their laws banning same-sex couples from marrying were constitutional.
In the most lopsided arguments over marriage bans at a federal appeals court this year, the 7th Circuit Court of Appeals judges clearly were ready to strike down the bans — with the only real question being what reasoning they will use to do so.
From the start of the arguments over Indiana’s ban at a little past 9:30 a.m. until the end of the arguments over Wisconsin’s ban at 11:11 a.m., 7th Circuit Judges Richard Posner, Ann Claire Williams, and David Hamilton pounded the two lawyers defending the bans with dismissive, incredulous questions about the basis and purpose for their respective states’ bans.
For the lawyers representing the same-sex couples, the judges almost assumed that the bans violate the constitutional guarantee of equal protection of the laws. The only question in the hearing Tuesday was whether the bans also violated due-process guarantees because marriage is a fundamental right.
Within minutes of Indiana Solicitor General Thomas Fisher taking to the podium to start his arguments, the tone was set.
“Why do you prefer heterosexual adoption to homosexual adoption?” Judge Posner, appointed to the bench by President Reagan, asked. When Fisher began responding that the marriage laws were unrelated to adoption, Posner was almost vitriolic in his response, saying of the state’s treatment of the children of same-sex couples, “You want them to be worse off.”
The reason for Posner’s unbending focus on the impact of the marriage ban became clear later in the arguments, when he talked about the “harrowing” stories of the discrimination faced by the children of same-sex couples that were detailed in the Family Equality Council’s amicus curiae, or friend-of-the-court, brief submitted in the Wisconsin case.
During Fisher’s rebuttal time, generally used to respond to arguments made by opposing counsel, Posner returned to the issue of the children, describing the amicus brief and asking Fisher, “It didn’t make an impression?”
At different times, Posner referred to Fisher’s arguments as “pathetic,” “ridiculous,” and “absurd.”
Remarkably, Wisconsin’s counsel fared worse. Wisconsin Assistant Attorney General Timothy Samuelson, at several points, said that he had no answer to several of the questions posed by multiple judges. When he did answer, his two go-to responses for the purpose and justification for Wisconsin’s constitutional ban were “tradition” and that it was a “legislative choice.”
Posner was having none of it.
“How can tradition be the reason?” he asked, mocking the answer by responding that saying “we’ve been doing a stupid thing” for a long time certainly wouldn’t be enough of a justification to uphold a law or practice.
When Samuelson offered “deference to the democratic process [as] another purpose,” Posner wanted more, telling the frustrated lawyer, “You have to have something better.”
Hamilton and Williams, though slightly more kind to the counsel defending the bans, were no more receptive to their arguments.
Although Indiana’s counsel said the ban was about “nudging” opposite-sex couples into marriage to lessen the impact of accidental procreation, Williams, appointed by President Clinton, said it sounded more like the ban was actually about the “transgression against social norms” that same-sex couples’ marriages would represent to some.
Hamilton, appointed by President Obama, was more direct when questioning Wisconsin’s lawyer, calling the argument a “reverse-engineered theory” aimed at avoiding the constitutional precedent set when the court struck down sodomy laws and other historical developments more broadly.
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