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You've Got to Feel Bad for Attorneys Arguing the SSM Cases

By William Peacock, Esq. | Last updated on

"What is the objection to polygamy?"

"The argument you're making is exactly what was rejected in Loving."

"Do you want kids adopted by homosexual parents to be worse off?"

"How? How does it hurt heterosexual marriage? How does it hurt children?"

The questions came fast and furious from all three judges today, and neither side of the arguments in Wolf v. Walker, a Wisconsin same-sex marriage case, and Baskin v. Bogan, Indiana's counterpart, was let off the hook, despite same-sex marriage advocates striking the lottery with the panel assignment.

If today's bloodbath is any indication, the Seventh Circuit panel is going to find in favor of gay marriage. Somebody, however, is going to have to find a credible argument to defend other traditional prohibitions against polygamy, marriage of cousins, etc., if those prohibitions have any chance of surviving inevitable challenges in the future.

Lucky Break for SSM Advocates

The majority of the Seventh Circuit is considered conservative -- seven out of 10 active judges were appointed by Republican presidents (not a perfect measure, though it understandably often correlates with judges' own beliefs).

Who made today's panel? A Clinton appointee (Judge Ann Claire Williams), an Obama appointee (Judge David F. Hamilton), and Judge Richard Posner, a disenchanted conservative appointed by Reagan.

And don't think that a 2-1 split is likely: as Think Progress points out, in 2013, Judge Posner penned "How Gay Marriage Became Legitimate," where he wrote that "apart from a religious case based largely on Roman Catholic doctrine," there is little justification for discriminating against gay people.

Posner Shows No Mercy

Here is our favorite part, a joust between Judge Posner and Indiana Deputy Attorney General Thomas Fisher, after Fisher tossed out the argument that traditional marriage encourages responsible procreation. From Courthouse News Service's excellent recap:

"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.

All three judges compared the case to Loving v. Virginia and traditional prohibitions on interracial marriage, especially after Wisconsin Assistant Attorney General Timothy Samuelson cited "tradition" as justification for his state's ban.

Same-sex advocates weren't spared from tough questions either, with Posner asking, "Where do you draw the line? What is the objection to polygamy?"

According to CNS, after the Indiana plaintiffs' attorney Camilia Taylor responded, Hamilton said her answers sounded "an awful lot like the arguments versus gay marriage."

UPDATE: Prof. Josh Blackman has many more benchslappings delivered by Judge Posner in today's cases.

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