Early reports (here and here) suggest that Judge Posner was at his finest (worst?) today with his vitriolic questions to the Attorneys General of Wisconsin and Indiana, who were attempting to defend (unsuccessfully it seems) their bans on same-sex marriage. Here are the highlights:
- “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.
- At one point, Posner ran through a list of psychological strains of unmarried same-sex couples, including having to struggle to grasp why their schoolmates’ parents were married and theirs weren’t.
- “What horrible stuff,” Posner said. What benefits to society in barring gay marriage, he asked, “outweighs that kind of damage to children?”
- A three-judge federal appeals panel on Tuesday closely questioned Wisconsin and Indiana’s bans on same-sex marriage, with one judge calling parts of the states’ arguments “absurd” and “ridiculous.”
- “These people and their adopted children are harmed by your law,” Judge Richard Posner said of gay and lesbian couples who are barred from getting married. “The question is what is the offsetting benefit of your law. Who is being helped?”
- Wisconsin Assistant Attorney General Timothy Samuelson responded that society as a whole benefited by preserving marriage as it has long been defined. Posner pressed on, asking if anyone would be harmed if same-sex couples were allowed to be married.
- But Posner expressed skepticism of the idea that the states were trying to promote procreation. “You allow all these sterile couples to get married,” he said. “Why are you doing that if you’re so interested in procreation?”
- Posner, who at times appeared to lecture the attorneys defending the bans, focused on the ability of same-sex couples to adopt children. He noted adopted children would benefit if their parents could claim the tax breaks and other perks of being married.
- “These children would be better off if their parents could marry, no? It’s obvious,” Posner said.
- “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.”
- At different times, Posner referred to Fisher’s arguments as “pathetic,” “ridiculous,” and “absurd.”
- “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.”
I don’t think the lawyers could do any better.
Putting aside the merits of the case, Posner is a bully from the bench. I’ve followed all of the other arguments in these cases, and the judges, even those who disagree with the lawyers, managed to be courteous and respectful.
Update: Ian Milhiser at ThinkProgress transcribes a full exchange with Posner:
Posner: What concrete factual arguments do you have against homosexual marriage?
Samuelson: Well, we have, uh, the Burkean argument, that it’s reasonable and rational to proceed slowly.
Posner: That’s the tradition argument. It’s feeble! Look, they could have trotted out Edmund Burke in the Loving case. What’s the difference? [Note: Loving v. Virginia was a 1967 decision striking down bans on interracial marriage] . . . There was a tradition of not allowing black and whites, and, actually, other interracial couples from marrying. It was a tradition. It got swept aside. Why is this tradition better?
Samuelson: The tradition is based on experience. And it’s the tradition of western culture.
Posner: What experience! It’s based on hate, isn’t it?
Samuelson: No, not at all, your honor.
Posner: You don’t think there’s a history of rather savage discrimination against homosexuals?