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.