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Tuesday, August 26, 2014

Federal Judge Appointed By Ronald Reagan Shreds Indiana's Lawyer During Oral Arguments About Indiana's Gay Marriage Ban

Posted by on Tue, Aug 26, 2014 at 4:09 PM

You'll want to listen to Indiana Solicitor General Thomas Fisher try to defend Indiana's ban on same-sex marriage before the 7th Circuit Court of Appeals this morning—you'll particularly want to listen if you're a gay parent. The full recording is here. All three judges eventually tear into Indiana's argument—and Indiana's stammering Solicitor General—but Judge Richard Posner, a Reagan appointee, starts hammering away at Fisher from the start. Posner can't understand the logic behind Indiana letting same-sex couples adopt children while at the same time refusing to let same-sex couples marry because marriage is about "responsible" parenting. I particularly loved this exchange:

JUDGE POSNER: "You allow the homosexual couples to adopt. Why don't you want their children to have the same advantages as children adopted by heterosexual couples?"

FISHER: "The question is what can we do to nudge heterosexual couples who may produce children, you know, unintentionally to plan for this—to plan for the consequences and appreciate the consequences of sexual behavior. Those consequences don't arise with same-sex couples. It's not in the context of adoption that marriage—"

JUDGE POSNER: "But you're not answering my question. You've got millions of adopted children, and a lot of them—200,000 or more—are adopted by same-sex couples. Why don't you want their children to be as well off as the adopted children of heterosexual couples?"

FISHER: "Of course we do.... [but] the marriage scheme is not set up with adoption in mind."

Posner proceeds to ask why the state of Indiana allows sterile people to marry—and why it allows incestuous marriage under certain circumstances. Two first cousins can legally marry in Indiana if both are over age 65. Fisher responds that Indiana allows first cousins over age 65 to marry because those unions are "unlikely to produce children." I'm surprised that one got past Posner: Indiana's won't let same-sex couples marry because they're incapable of producing children but the state allows first cousins to marry for the exact same reason?

Then one of the other judges breaks in:

JUDGE WILLIAMS: "Wouldn't you agree that marriage is not just about having children, but about raising children? You agree that there are two components?"

FISHER: "Oh, yes."

JUDGE WILLIAMS: "Okay, then are you saying same-sex couples cannot successfully raise children?

FISHER: "Absolutely not."

JUDGE WILLIAMS: "Well, if Indiana's law is about successfully raising children and you agree same-sex couples can successfully raise children, why shouldn't the ban lifted as to them?"

FISHER: "I think the assumption is that with opposite-sex couples there is very little thought given during the sexual act, sometimes, 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—you're, you're setting that up differently than accidental. So I mean, here are people who want to have children, know they want to have children, it is not accidental, they make that commitment to raise the children. I just don't get that, it's another aspect of what Judge Posner is raising."

FISHER: "And I think the working assumption there, your honor, is that, in that circumstance, the state doesn't need to nudge those couples to stay together. There already is that working understanding. With opposite-sex couples it may be a fleeting moment of passion that leads to a child and that's what we're trying to address, trying to deal with the consequences."

Fisher's argument: marriage is exclusively about raising children (which it isn't), straight people have children by accident (sometimes true), gay people never have children by accident (not always true), therefore marriage must be reserved for straight people—because straight people are reckless and irresponsible sex monsters who need a "nudge" from the state in oder to do the right thing by all those babies they have by accident.

Marriage equality has been on a winning streak since the Supreme Court struck down the Defense of Marriage Act last summer. And based on what transpired today it sure looks like the 7th Circuit Court of Appeals is going to strike down Indiana's ban on same-sex marriage. But it wasn't too long ago that the argument made by Indiana Solicitor General Thomas Fisher—an argument that Posner, a conservative, refused to entertain—was carrying the day.

In 2006 both the New York Court of Appeals and the Washington State Supreme Court ruled that their state's bans on same-sex marriage were constitutional because, a la Fisher, straight people are irresponsible sex monsters who have to be nudged to do the right thing. Most supporters of marriage equality were crushed when these two decisions came down—we were expecting wins in both courts—but I wasn't:

These defeats have demoralized supporters of gay marriage, but I see a silver lining. If heterosexual instability and the link between heterosexual sex and human reproduction are the best arguments opponents of same-sex marriage can muster, I can’t help but feel that our side must be winning. Insulting heterosexuals and discriminating against children with same-sex parents may score the other side a few runs, but these strategies won’t win the game.

So I’m confident that one day my son will live in a country that allows his parents to marry. His parents are already married, as far as he’s concerned, as my boyfriend and I tied the knot in Canada more than a year and a half ago. We recognize, even if the courts do not, that it’s in his best interest for us to be married.

The headline of that eight-year-old NYT op-ed? "Same-Sex Marriage Wins by Losing." I have to say that winning by winning is a lot sweeter than winning by losing. But some of us could see, back in 2006, that the arguments being made by opponents of marriage equality were laughable. The problem back then was not everyone could see that. Not everyone was laughing. State supreme court justices in particular were taking these arguments seriously.

Again, you'll want to listen to today's tape. You can hear Judge Posner laughing.


Comments (39) RSS

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It's likely that Posner responded to the infertile incestuous explanation with a facial expression rather than in words.
Posted by kinaidos on August 26, 2014 at 4:16 PM · Report this
rob! 2
As usual, Yiddish is insightful: nudge (nudzh) a bore or pest; to bore or pester; to push
Posted by rob! on August 26, 2014 at 4:27 PM · Report this
venomlash 3
"shreds"? Dude, we just had this conversation about hyperbolic clickbait. I'm disappointed in you, Mr. Dan Savage.
Posted by venomlash on August 26, 2014 at 5:05 PM · Report this
Matt the Engineer 4
I love that Indiana is calling it "the marriage scheme".
Posted by Matt the Engineer on August 26, 2014 at 5:11 PM · Report this
emma's bee 5
Enjoy this well earned moment of vindication, Dan. Winning by winning: from your mouth to Posner's ears.
Posted by emma's bee on August 26, 2014 at 5:14 PM · Report this
theophrastus 6
sweet-zombie-jeebuz! what horrors of twisted logic, their -own- logic, they have to spout to protect their selfish fears from being directly expressed.
Posted by theophrastus on August 26, 2014 at 5:17 PM · Report this
IndicaDogwalk 7
Once again, conservatives are on the wrong side of history.

The courts can no longer uphold legislated bigotry against the LGBTQ community regarding our right to marry. It's just not defensible, yet the bigoted "Christians" never seem to tire of their crusade. All in the name of Jesus' love, right?

The bigots are losing the fight, and history is proving that their arguments are not legally defensible, nor do they reflect the values of that peace loving hippie they all seem to follow (Jesus).
Posted by IndicaDogwalk on August 26, 2014 at 5:24 PM · Report this
Sandiai 8
Also, it's not like marriage is a requirement when heterosexuals make babies. Oh!, also, also: why do first cousins need a "nudge" from the state?

Maybe SB will come and explain all this to us.
Posted by Sandiai on August 26, 2014 at 5:52 PM · Report this
Not the best sequence from today. The orals from Wisconsin's case:…

Starting right around 3:30:
Posner: Why? Does [the Legislature] have a reason, or doesn't need a reason, or what?
Dipshit Attorney Samuelson: Well I think there's several reasons, I think tradition is one of the reasons...
Posner: How can tradition be a reason for anything? I don't get that. That's again the Loving case, right? The TRADITION of forbidding interracial marriage went back to colonial times. It was 200 years old by the time Loving came along.
DAS: I think Loving was a deviation from the common law rather than codifying it.
Williams interjects: What??
Posner chuckles: Look, interracial marriage had been forbidden in the colonies and in many many states not just southern or western, for over a hundred years, so why wasn't that a tradition?
DAS: It's distinguishable, it's a different tradition.
Posner laughs at him: Of COURSE it's a different tradition!
Posted by Hanoumatoi on August 26, 2014 at 5:52 PM · Report this
Samuelson: The context of Zablocki is significant. At the time, the only legal means for Mr. Redhail to engage in sexual intimacy was through the institution of marriage.
Judge Williams: Right, so your theory then is that when Zablocki said "The right to marry is of fundamental importance for all individuals" the court didn't actually mean that, but just meant to say that there's a fundamental right to have sex with people without criminal sanction. Is that right?

Posted by Hanoumatoi on August 26, 2014 at 6:06 PM · Report this
Dr. Z 11
For bonus points, Judge Posner isn't just any conservative judge. He is highly regarded - and has had a long running feud with both Justice Scalia (whom Posner regards as incoherent) and Chief Justice Roberts (whom Posner regards as an incompetent administrator. The Chief Justice of the SCOTUS oversees the entire federal judiciary, and Posner has been highly critical of him on that issue.)

Posner is an interesting guy. He's the one who ruled against "Intellegent Design" in a case a few years ago.

As for Fisher, his argument is fundamentally flawed on several levels. In particular, it does not actually accomplish its stated objective (encouraging "responsible" heterosexual procreation), it is too broad for its stated purpose (it impacts same-sex couples who have nothing to do with these straight couples) and it treats similarly-situated classes differently (same-sex couples with children are not treated the same as opposite-sex couples with children.)

Game, set, match.
Posted by Dr. Z on August 26, 2014 at 6:14 PM · Report this
Sandiai 12
Oh, that makes sense @10. The purpose of marriage is to sanctify SEX. So first cousins sometimes want to have their sex lives sanctified. What SSM opponents DON'T want sanctified is icky butt-sex.*

(Note, I'm just going through their logic. OF COURSE I don't agree with it).

(*I just hope those first cousins aren't having icky butt-sex).
Posted by Sandiai on August 26, 2014 at 6:23 PM · Report this
Re: venomlash. Editors compose the headlines for news stories, not the authors of the articles themselves. Blame for a bad headline goes to editorial staff, not Dan Savage.
Posted by Earle Howe on August 26, 2014 at 6:24 PM · Report this
Wait a minute! I thought that straight people were responsible and gay people were the sex-crazed monsters! Where was I when the world turned upside down?
Posted by Clayton on August 26, 2014 at 6:24 PM · Report this
fletc3her 15
The Washington Supreme Court decision was a dark day for me. I was disheartened by the illogic of their decision. It showed courts will stand reason on its head out of fear the populace isn't ready for the correct decision.

For me it created the seed that eventually grew into full throated support for same sex marriage.
Posted by fletc3her on August 26, 2014 at 6:32 PM · Report this
biffp 16
Agree with @11, Posner isn't defined by the politics of the man who appointed him. Posner is a little too into freakonomics, but he is intelligent and more intellectually honest than the conservative majority of SCOTUS. That's probably why he was often discussed but never appointed to SCOTUS during W's presidency.
Posted by biffp on August 26, 2014 at 6:48 PM · Report this
Posner is my judicial boyfriend. Except for the wack law and econ stuff.
Posted by dlizzle on August 26, 2014 at 6:49 PM · Report this
You would normally be right, but I'm fairly certain that doesn't apply to slog. It's a matter of blogs vs. newspaper content.
Posted by AT777T on August 26, 2014 at 6:52 PM · Report this
If you like the headline, I wrote it. If you hate it, Frizzelle did.
Posted by Dan Savage on August 26, 2014 at 7:01 PM · Report this
Foghorn Leghorn 20
Yeah, Reagan may have appointed him, but Posner is awesome. He can be conservative, but in that "Reason and Sound Argument win the day" kinda way not the "Murrrica!" kinda way. The way you want judges to be.
Posted by Foghorn Leghorn on August 26, 2014 at 7:27 PM · Report this
@Dan: What if I'm indifferent? Constant?
Posted by Hanoumatoi on August 26, 2014 at 7:39 PM · Report this
SchmuckyTheCat 22
I'd be totally fine with Posner replacing Scalia, Alito, or Thomas on SCOTUS. More than fine.. Too bad it'll never happen, judges, like all elected have to conform to lowest common denominator metrics.
Posted by SchmuckyTheCat on August 26, 2014 at 8:01 PM · Report this
So ... punish the gay people because they actually give thought to the consequences of having a child? Got it, Indiana, thanks.
Posted by Escapee from S. Idaho on August 26, 2014 at 8:11 PM · Report this
@3 My dear friend, whose pen I nearly worship at times:

I must disagree with your premise that this post was hyperbole. I spent a joyful couple hours listening to the full playback. There was definitely shredding going on. Both appellant's (State's) attorneys were as mice or spiders being mercilessly toyed with by cats. Posner even said he wasn't interested in their stronger arguments, he wanted to tear apart their weak ones. And then the three judges proceeded to tear apart their entire miserable excuses for a case, from the bottom up. Into itsy-bitsy unexplainably pointless pieces.

It was like junior-high school students being critiqued at a grad-school level. By sadists.

I loved every second of it!

The judges also questioned the plaintiffs/appellees' attorneys, too, but it had an entirely different tone, like academics kicking around legal theories, just for the intellectual exercise, or maybe to test-drive some language for what is sure to be a withering opinion to affirm the lower courts. If it was a book, I'd be pre-ordering it now!
Posted by Brooklyn Reader on August 26, 2014 at 8:53 PM · Report this
sirkowski 25
I listened to the whole thing. Fisher really got his ass devastated. He sounded like a bumbling nerd.
Posted by sirkowski on August 26, 2014 at 9:22 PM · Report this
"Federal Judge Appointed By Ronald Reagan" -- really Dan? Judge Posner is an incredibly well known judge who has probably written on more legal issues than any judge who has ever say on the bench, and you feel the need to refer to him by the fact that Reagan appointed him? The dude is famous enough that you can just call him by his name.
Posted by ourkind on August 26, 2014 at 9:32 PM · Report this
Knat 27
In reading that excerpt and listening to some of the recording, and trying to follow the opponents' logic, my mind went to a quote from The Birdcage, uttered by Gene Hackman's character after he realizes the family-values woman he's so impressed by was a man in drag the whole time: "I feel like I'm insane."

@11: Are you referring to something other than Kitzmiller v. Dover in reference to ruling against Intelligent Design? That case was presided over by Judge John E Jones III, and as far as I am aware was the death knell for ID to be taken seriously. I can't find any reference to Posner being involved with ID other than a passing reference in a NYT article, critiquing traditional media.
Posted by Knat on August 26, 2014 at 9:51 PM · Report this
It's amazing to me that a state solicitor general would think that those arguments are going to hold any water, given recent history.

I'd think it a much wiser course to steer clear as much as possible from the question of whether gay (or heterosexual) couples make good parents, or whether marriage is to promote responsible parenthood, and focus on whether exclusive recognition of heterosexual marriage is discrimination under a legal definition and whether a state has a right to limit its recognition to the same. I still think it'd be a losing argument, but at least it could be a less comical one.
Posted by madcap on August 26, 2014 at 10:04 PM · Report this
Is there a full transcription somewhere? I don't have the patience to listen to the whole thing, but I'd love to read it.
Posted by Nomen on August 27, 2014 at 3:08 AM · Report this

This is like a cross between The Importance of Being Earnest and Lord Edgware Dies. With the usual NASPALT Disclaimer, speak the truth about straight people being irresponsible sex fiends who procreate without rhyme or reason and therefore need every unfair advantage the state can bestow upon them in a sufficiently silly way, and nobody will believe it.
Posted by vennominon on August 27, 2014 at 5:22 AM · Report this
ROFL!!!!! My conservative boss just asked me why I am laughing and I told him.
Posted by Hopiwan on August 27, 2014 at 6:51 AM · Report this
Dan, I know this is an unsigned comment, but I hope you read it, so you get a sense of who Judge Posner is. Like @11 and @26 said, he is a very well regarded judge and judicial thinker. That however undersells him a bit. In truth he is nearly universally acknowledged to be the greatest judge not to be named to the Supreme Court, the first judge to wear that dubious title in about 50 years. The reason he has never been seriously considered is because of his independence and iconoclasm.

When he began his legal career, he was an ardent liberal who clerked for the great liberal Justice William Brennan and then worked in the Solicitor General's office under Thurgood Marshall. Then he became a professor at the University of Chicago where hebe ame enthralled with the freshwater economists there. Posner helped to create Law in Economics, a very influential theory in law which suggests that law should be interpreted through an economic lens. He became more conservative as he got deeper into it, as again his perspective came from freshwater economists. (Law and Economics is not inherently conservative; fellow L&E pioneer Guido Calabrisi of the 2nd Circuit and formerly of Yale, is famously liberal.)

After the financial collapse in 2008, Posner effectively renounced his entire philosophy in a giant mea culpa and as the Republicans have descended further into insanity, he has rediscovered his former liberalism. He is especially contemptuous of Scalia and since Heller, the handgun decision, Posner has missed no opportunity to attack what he sees as Scalia's nonsense philosophy.
Posted by SolMuser on August 27, 2014 at 7:50 AM · Report this
@3: To me, it sounds like Thomas Fisher is like finely shredded machaca
Posted by RDM on August 27, 2014 at 8:28 AM · Report this
Ehhhh Posner may have been appointed by Reagan but he's not really a "conservative" conservative - he's a Libertarian/general government skeptic. He is an enthusiastic atheist and he wrote a book post-economic-meltdown called "A Failure of Capitalism." He notoriously wrote a defense of selling babies. In other words, he's never been aligned with the far right. This really isn't a surprise.
Posted by MCR on August 27, 2014 at 8:49 AM · Report this
I usually don't listen to stuff like this, but this was incredibly informative and entertaining. Thanks.
Posted by bookworm on August 27, 2014 at 9:06 AM · Report this
AFinch 36
That was just so awesome. Thanks for the link to the audio.
Posted by AFinch on August 27, 2014 at 11:48 AM · Report this
Ophian 37
I love me some marriage equality court transcripts. It is just too delicious to see the idiots squirm.

Also, Vaughn Walker was originally nominated by Reagan as well.
Posted by Ophian on August 27, 2014 at 12:25 PM · Report this
If you want to hear just snippets of the recording, Slate has a nice breakdown of the highlights. I love the sound of fear being slowly broken down by the light of law and logic.

It really is a rare inspirational thing to listen to, isn't it?…
Posted by skyweaver on August 28, 2014 at 9:42 AM · Report this
If Judge Posner writes an opinion striking down a law prohibiting against same-sex marriage it will probably end the issue from a judicial standpoint. There might not be a more a more respected or more frequently cited living jurist. I really hope he is the author of the opinion when it comes out.
Posted by brent.b on August 28, 2014 at 1:26 PM · Report this

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