Category archives: Marriage

News Flash: Pornography Hurts Marriage

by Rob Schwarzwalder

December 22, 2014

Our friends at the Porn Harms Coalition (of which FRC is a member) have drawn attention to a study that quantifies what every common-sensical person in the world knows intuitively: Viewing pornography discourages and damages marriage. The German Institute for the Study of Labor (apparently the Germans understand that marriage affects labor productivity, as FRC’s Marriage and Religion Research Institute has argued for years) hired researchers at Pennsylvania’s West Chester University and Britain’s Timberlake Consultants to study whether “increasing ease of accessing pornography is an important factor underlying the decline in marriage formation and stability.”

Well, the German-sponsored study found it did: “Substitutes for marital sexual gratification may impact the decision to marry. Proliferation of the Internet has made pornography an increasingly low-cost substitute … We show that increased Internet usage is negatively associated with marriage formation. Pornography consumption specifically has an even stronger effect.”

Pornography as a “low-cost substitute” for marriage? So, are women merely sexual tools for readily-aroused young men? What a comment on how many young men in our time view women! Yet advocates of complete sexual autonomy (over-the-counter contraception for all, for example) refuse to acknowledge this corrosive fact.

We welcome this contribution to the scholarly literature showing that pornography adversely affects getting and staying married. To simplify things, though, ask any pastor, priest or rabbi who’s ever counseled a woman with a boyfriend or husband addicted to pornography. That conversation will prove more unforgettable than even the most riveting study ever can.

For those struggling with addiction to pornography or who want to help those who are, Porn Harms offers great resources. And, remember, Jesus Christ is the greatest resource of all.

Christmas Joy and Divorce

by Nathan Oppman

December 9, 2014

Each Christmas my wife Joy and I set up our tree and relive the memories of past years. For every year of Joy’s life she has received an ornament commemorating a major life event. There is a baby crib for year one and a Crayon box for a few years later. There is an ornament for her first car and for her college graduation. There are many “Joy” ornaments as can be expected for someone with such a cheery Christmas name. And there is one of my favorites, the one that reminds us of our marriage. Sadly many couples do not spend Christmas together. Many more use the holiday, not for sharing sweet memories but for hurtful words and unkind actions. Others spend it shuttling the kids between their broken homes.

I consider my marriage to my wife to be precious as well as sacred. When we said our vows we both sincerely understood and meant “for better or for worse” and “‘til death do you part.” A recent article in First Things on the danger of no-fault divorce laws demonstrates the sad reality for many families harmed by recent American attitudes toward divorce. The article lists some casualties of no-fault divorce including “abandoned spouses, the institution of marriage, and American society itself.” No-fault divorce gives the false impression that there is an easy way out of the difficulties of marriage. Rather than seeking to understand one another, become more loving, and to get counseling when needed, many couples simply give up on marriage. But divorce is never that simple. It affects children, the couple, and the country. A society whose basic family unit is not functioning in harmony cannot expect its political institutions to function well. A society where the marriages are not accountable to God cannot expect its other institutions to be accountable to God.

Love in marriage is a difficult thing. One sees all of the faults of their spouse. It can be easy to become frustrated and discouraged. But marriage is not about one, it is about two who have become one. No fault divorce has caused many homes to become not a place of joy at Christmas but one of bitterness and broken hearts. We must work to change the no-fault divorce culture to a marriage-is-precious culture. So this Christmas if you are struggling, let your spouse know you believe your marriage is precious and seek help. If you are happily married then I recommend going home and, like me, giving your Joy a loving Christmas hug, it will do more good than you know.

Sketchy Judicial Assignments in Ninth Circuit Marriage Cases

by Chris Gacek

November 14, 2014

The American people are justified in wondering if they are ruled by interlocking ruling bodies that operate in secret, govern with unbridled duplicity, and are immune to correction by the People acting through their representatives or acting directly in referenda. There have been many prominent examples in the last two months. Two involve our imperious judicial oligarchy.

But, first we have the recent reports of repeated statements by Obamacare insider and MIT economist, Jonathan Gruber, calling the American people “stupid” and boasting that Obamacare was foisted on the public through a determined campaign of lying and deviousness. Lies on top of lies on top of lies.

Second, in early October the U.S. Supreme Court appeared to act with stunning cynicism when it dismissed requests for review of marriage-definition cases arising out of several federal appellate courts. The Court had heard an identical case when it reviewed the constitutionality of California’s Proposition 8 less than two years ago. However, the Prop 8 case was dismissed because the plaintiffs, the proponents of Prop 8, were deemed to lack “standing” to sue. This conclusion was reached because California’s Attorney General took a dive in the litigation and refused to defend a ballot-approved amendment to the California constitution. (Prop 8 was supported by a 52% majority in November 2008.)

The October 2014 cases petitions to the Supreme Court checked all the boxes for standing, but the cases were still turned away allowing lower court rulings that struck down male-female marriage to stay in place. It appeared the that Supreme Court was taking the coward’s way out by allowing lower courts to redefine marriage in America without publicly putting forward a majority opinion explaining how the male-female definition of marriage could violate any constitutional principle. This Court, it appeared, didn’t even have the integrity to write its own Roe v. Wade for marriage. On November 6th the U.S. Court of Appeals for the Sixth Circuit supported the traditional marriage definition. Now that there is a split among the circuit courts, the Supreme Court’s stealth imposition strategy won’t work – if that is what they were doing. Now the nation is left with an incoherent stew of constitutional slop consisting of incongruent reasoning and standards. The reputation of the Supreme Court is being badly damaged each day this continues.

Well, if you were to think that the reputation of our black robed masterminds couldn’t get much worse, think again. In October 2014 a panel of the U.S. Court of Appeals for the Ninth Circuit issued a decision striking down the male-female marriage regime established be the voters of Nevada and Idaho. (The court reversed an excellent Nevada opinion that had supported traditional marriage.) In mid-October, a private group in Nevada, the Coalition for Protection of Marriage, filed a petition and a supporting affidavit with supporting statistical analysis with the full Ninth Circuit purporting to demonstrate that the panels in cases on homosexual-related issues were not being assigned randomly. In fact, they claimed that two of the court’s most liberal members (Stephen Reinhardt and Marsha S. Berzon) were greatly overrepresented in such cases. Here is how the Coalition for Protection of Marriage summarized its claim of bias in panel selection:

The attached statistical analysis … explains that since January 1, 2010, Judge Berzon has been on the merits panel in five and Judge Reinhardt has been on the merits panel in four of the eleven Ninth Circuit cases involving the federal constitutional rights of gay men and lesbians (“Relevant Cases”), far more than any other judge and far more than can reasonably be accounted for by a neutral assignment process. Indeed, statistical analysis demonstrates that the improbability of such occurring randomly is not just significant but overwhelming. Thus, the odds are 441-to-1 against what we observe with the Relevant Cases—the two most assigned judges receiving under a neutral assignment process five and four assignments respectively (and anything more extreme). (Petition, 3-4.)

If assessed accurately, this assignment pattern was not random. The case assignment was rigged to help assure the politically desired outcome.

It goes without saying that this is an extremely serious accusation that needs investigation not just by some handpicked Ninth Circuit lackey but by the Chief Justice of the U.S. Supreme Court and by the new Senate Judiciary Committee to be chaired by Senator Grassley.

Snoops on the Stoops of the Church

by Tony Perkins

October 15, 2014

When it comes to illegal surveillance, it looks like the NSA has some competition. In a story that’s making Texans’ heads spin, the Houston P.C. police — the same Council that passed an LGBT ordinance this year — is subpoenaing sermons, emails, and even text messages from local pastors to see if they’re promoting a voter referendum to overturn the measure.

The jaw-dropping move — one in a long line of Houston’s “gotcha” government — is only fanning the flames of outrage over the city’s totalitarian tactics. Even for Houston’s radical leadership, this is an affront to the plain language of the First Amendment, which not only gives churches the right to speak freely but the individuals leading them as well! “City council members are supposed to be public servants, not ‘Big Brother’ overlords who will tolerate no dissent or challenge,”said Alliance Defending Freedom’s Erik Stanley. “In this case, they have embarked upon a witch-hunt, and we are asking the court to put a stop to it.”

Yesterday, ADF filed a motion in court to stop the senseless monitoring of churches. “The message is clear,” they explain, “oppose the decision of city government, and drown in unwarranted burdensome discovery requests… Not only will the pastors be harmed if these discovery requests are allowed, but the People will suffer as well. The referendum process will become toxic and the People will be deprived of an important check on city government.”

It’s a sad commentary on our times that a nation founded by church leaders is trying to muscle those same religious voices out of the political process. Obviously, there’s no limit to how low the Left will stoop, and how many laws it will break, to impose its agenda on unwilling Americans.

 

An Inescapable and Irrepressible Conflict

by Rob Schwarzwalder

October 6, 2014

The Supreme Court today has “turned away appeals from five states looking to prohibit gay marriage, effectively legalizing same-sex marriage in those states and likely others — but also leaving the issue unresolved nationally.” So now same-sex “marriage” is legal in 30 states plus D.C.

My boss Tony Perkins issued a thoughtful statement about the ruling earlier today. In part, he said, “As more states are forced to redefine marriage, contrary to nature and directly in conflict with the will of millions, more Americans will see and experience attacks on their religious freedom.” Sadly, he’s dead right.

There are a number of dimensions to this issue, one of which was articulated by Dr. Al Mohler of Southern Baptist Seminary in an article on September 24: Homosexuality is “now inescapable for every congregation, every denomination, every seminary, and every Christian organization. The question will be asked and some answer will be given. When the question is asked, any answer that is not completely consistent with the church’s historical understanding of sexual morality and the full affirmation of biblical authority will mean a full embrace of same-sex behaviors and same-sex relationships. There is no third way, and there never was.”

Two observations: First, Dr. Mohler is right with respect to the inevitability of division within the believing church over this issue. Christians will choose to be faithful to Scriptural teaching or they won’t. There is not, as he notes, nor will there ever be, any middle ground between obedience and submission to the revealed will of God and rebellion against it.

Second, I’m haunted by the memory of William Seward’s comment, immediately before the Civil War, that strife between North and South over slavery constituted “an irrepressible conflict.”

Millions of Americans simmer with resentment at the coerced redefinition of marriage the courts are imposing on them, despite referenda in dozens of states where they have affirmed the traditional definition of marriage quite explicitly. The Dred Scott decision did not decide the issue of human bondage. The Roe v. Wade decision has not decided the issue of abortion on demand. And the continued federal court confusion over same-sex unions only postpones a day of legal reckoning that could create a measure of civic sundering unwitnessed in our nation for decades.

Even if the Supreme Court has valid reasons for postponing their decision on this issue, postponement is not resolution. I fear that whatever decision the Supremes finally reach will not resolve it, either.

Supremes Dodge Most Important Issue Before Them — Marriage

by Peter Sprigg

October 6, 2014

The Supreme Court has declined to take up any of the pending same-sex “marriage” cases before them.

There is bad news and good news in this decision. The bad news is that these states have been denied the opportunity to defend their legitimate power to define marriage before the Supreme Court. The good news is that the Supreme Court does not seem to be as eager as many people assumed to issue a “Roe v. Wade“-type decision redefining marriage.

This decision reflects cowardice on the part of the Supreme Court. People on both sides of the marriage debate agree that the constitutional issues that have been raised should be addressed by the highest court in the land. The Court is right to fear a backlash if they impose a redefinition of marriage on all fifty states; but they are wrong to just let the lower courts do their dirty work for them.

The decision is baffling on several levels. It is hard to understand why the Court heard the case (Hollingsworth v. Perry) challenging California’s Proposition 8 in 2013 (then declined to rule on the merits because of standing issues), but is refusing much clearer cases now. Some say they are waiting for “circuit split” on the issue, but one already exists — the Eighth Circuit upheld Nebraska’s marriage amendment in 2006 (Citizens for Equal Protection v. Bruning). Furthermore, the Supreme Court’s own “dismissal for want of a substantial federal question” of a same-sex “marriage” case out of Minnesota in 1972 (Baker v. Nelson) remains binding precedent until the Supreme Court itself explicitly overrules it.

Everyone needs to be reminded that the question of whether redefining marriage is good public policy is separate from the question of whether the Constitution of the United States mandates such a redefinition. Even those who favor redefining marriage should understand that such a radical social change is more likely to be accepted if it is adopted through the democratic process, rather than imposed from on high by a court.

One thing is clear — anyone who claims to know what the Supreme Court is thinking is wrong.

Memo to Evangelicals: All Marriages Are Not, Nor Ever Will Be, Biblically Equal

by Rob Schwarzwalder

September 15, 2014

Evangelicals for Marriage Equality” has published a piece in TIME magazine asserting an orthodox theological case for same-sex “marriage.”

This ground has been covered so often that to write about it again seems redundant to the point of being tedious. Yet it cannot be ignored because its proponents keep raising it. Below are some responses to this new initiative whose essential argument – that “it’s possible to be a faithful Christian with a high regard for the authority of the Bible and a faithful supporter of civil marriage equality” – is simply not consistent with biblical teaching, natural law, or the quantifiable good of society.

This is not a dispute like Christian disagreements over modes of baptism or the doctrines of the end times (you say amillenial, I say premillennial, but we’re not going to call our fellowship off). It is about whether or not the clear meaning of any number of passages in the Old and New Testaments is true, and whether what the Bible teaches about human sexuality is right or wrong.

To professing Evangelical advocates of same-sex “marriage:” Stop dissembling. Reject revealed truth concerning human sexual behavior if you will. Christ does not compel faithful discipleship at the point of a gun. Just don’t pretend the Bible doesn’t say what it says or that your personal experiences and/or longings must supersede the commands of the Creator and Redeemer of the universe.

Dr. Robert Gagnon, “Jesus, Scripture, and the Myth of New-Knowledge Arguments About Homosexuality

Jesse Johnson, “The Case Against Same-Sex Marriage

Andrew Walker, “An Evangelical Defense of Traditional Marriage

Rev. Peter Sprigg, “Top Ten Harms of Same-Sex Marriage

Rob Schwarzwalder, “Leviticus, Jesus, and Homosexuality: Some Thoughts on Honest Interpretation

Rev. Dr. David E. Prince, “Christianity and the New Liberalism: Homosexuality and the Evangelical Church

Judge Posner Ignores the Obvious: Kids Care More about a Mom and Dad than about a Government Certificate

by Peter Sprigg

September 8, 2014

Ed Whelan of the Ethics and Public Policy Center has been doing a great job at National Review Online debunking Judge Richard Posner’s opinion striking down the Indiana and Wisconsin marriage laws for a panel of the U. S. Court of Appeals for the Seventh Circuit on September 4 (see here, here, here, and here).

I will note here just one thing that jumped out at me in both the oral arguments and the opinion. Judge Posner makes the following argument (pp. 22-23 of the opinion):

Consider now the emotional comfort that having married parents is likely to provide to children adopted by same-sex couples. Suppose such a child comes home from school one day and reports to his parents that all his classmates have a mom and a dad, while he has two moms (or two dads, as the case may be). Children, being natural conformists, tend to be upset upon discovering that they’re not in step with their peers. If a child’s same-sex parents are married, however, the parents can tell the child truthfully that an adult is permitted to marry a person of the opposite sex, or if the adult prefers as some do a person of his or her own sex, but that either way the parents are married and therefore the child can feel secure in being the child of a married couple. Conversely, imagine the parents having to tell their child that same-sex couples can’t marry, and so the child is not the child of a married couple, unlike his classmates.

Judge Posner’s set-up of this hypothetical situation sounds like a demonstration of how same-sex “marriage” could harm children raised by same-sex couples:

Suppose such a child comes home from school one day and reports to his parents that all his classmates have a mom and a dad, while he has two moms (or two dads, as the case may be). Children, being natural conformists, tend to be upset upon discovering that they’re not in step with their peers.

Perhaps it is a function of his long judicial career, but Judge Posner seems to think that it is entirely the law which will determine whether such a child experiences “comfort” or distress from such a situation. If the law says that the two women or two men raising the child cannot be “married,” the child will experience distress. But if the law says that the two women or two men raising the child are “married,” then they will experience “emotional comfort,” presumably from the knowledge that their family is just like that of their friends.

Except, even in Judge Posner’s own framing of the situation, it is not the absence of a marriage certificate that makes the children feel different from his peers. It is that “all his classmates have a mom and a dad, while he has two moms (or two dads, as the case may be).” If the child’s “two moms” or “two dads” are permitted to “marry” — well, “all his classmates” will still have “a mom and a dad,” while the child in question will still be “not in step with [his] peers” because he will still not have a mom and a dad!

Judge Posner is naïve in the extreme if he thinks that such a child would care more about whether his caregivers have a certificate from the government than about whether his family includes something as fundamental on a human level as a mother and a father.

Men and women make babies, and same-sex couples do not.”

by Peter Sprigg

September 2, 2014

On August 26, 2014, a three-judge panel of the U. S. Court of Appeals for the Seventh Circuit heard oral arguments in Chicago in cases challenging the marriage laws of two states, Indiana and Wisconsin.

I have already written a detailed blog post outlining highlights of the arguments and my reactions to them. However, I thought it would be worth sharing some more extended excerpts of the argument in defense of a one-man-one-woman definition of marriage. Indiana Solicitor General Thomas Fisher outlined (and Wisconsin Assistant Attorney General Timothy Samuelson endorsed) the core constitutional argument — that marriage exists as a public institution primarily to promote responsible procreation.

At oral arguments, the attorneys are frequently interrupted by the judges, so the following quotes are taken from a variety of points during the argument. The quotes are my own transcription from the audio which the court posted here.

Thomas Fisher:                                                     

If we don’t have marriage, what is the issue we’re dealing with? We’re dealing with widespread heterosexual activity that creates babies. There has to be a mechanism to deal with that. The mechanism is, let’s channel potentially procreative couples into relationships that are durable and longstanding and will remain together for the sake of the child… .

The question is, “What can we do to nudge heterosexual couples, who may produce children, 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… . .

 … [A]ll this is a reflection of biology. It’s simply that men and women make babies, and same-sex couples do not… .

We have to have a mechanism for dealing with those babies, and marriage is that mechanism.

Critics of Natural Marriage Remain in Search of Legal Rationale in 7th Circuit Arguments

by Peter Sprigg

August 28, 2014

I regard it as absurd, you say it’s self-evident.”

That caustic remark — one of many — from Judge Richard Posner, during the August 26 oral arguments regarding Indiana and Wisconsin marriage laws, perhaps encapsulated the gulf between those seeking to retain the natural definition of marriage as the union of a man and a woman and those seeking to redefine it for the purpose of affirming homosexual relationships.

Posner, a 75-year-old Reagan appointee, directed his quip at Indiana Solicitor General Thomas Fisher, who was defending his state’s law defining marriage as the union of one man and one woman before the 7th U.S. Circuit Court of Appeals in a set of cases under the heading Baskin v. Bogan. The court also heard arguments regarding Wisconsin’s marriage amendment in the case of Wolf v. Walker. District courts in both cases ruled the state marriage laws unconstitutional earlier this year. (Oral arguments in the cases can be heard online at the links above.)

Mr. Fisher was right. The case for defining marriage as the union of a man and a woman is (or at least should be) self-evident. It is self-evident that opposite-sex and same-sex sexual relationships are not the same — the former can result in natural procreation, and the latter never can. That fact, in turn, makes it self-evident that society has a greater interest in both encouraging and regulating opposite-sex relationships (which it does through the institution of marriage) than same-sex ones.

Nevertheless, the homosexual movement has succeeded in draping a curtain over these self-evident truths by misdirection involving not the rule, but exceptions — namely, opposite-sex couples who do not procreate and same-sex couples who do raise children. The specific point which Judge Posner considered “absurd” was the idea (posed by Posner himself) that a sterile, elderly opposite-sex couple could in any way be a “model” for a younger couple forming a family.

Posner dominated the arguments in both cases, offering by far the most questions and comments of any of the three judges — at least when defenders of natural marriage were attempting to make their case. While it is customary for judges in such settings to seize control of the discussion rather than simply allow the attorneys free rein, for most of the arguments, Posner was pushing a single point of his own, arguing rather than asking questions, and often not even allowing time for a single sentence in reply.

Posner’s single-minded obsession was the presumed plight of children who are being raised by same-sex couples. When the state argued that marriage addresses the uniquely heterosexual problem of accidental or unintended procreation, Posner asked, “Now, isn’t it true most unintended children are put up for adoption?” (Fisher answered, correctly, “I think many times single mothers care for them.”) Posner seemed to assume that most children raised by homosexuals are adopted from this pool of “unintended” children — painting a picture of homosexual couples heroically rescuing children abandoned by their heterosexual parents. (In reality, most children being raised by homosexuals or same-sex couples are the biological child of one partner, conceived in a previous heterosexual relationship and now forcibly separated from one biological parent by the other.) Posner’s own “self-evident” truth — apparently heavily influenced by a brief filed by the pro-homosexual Family Equality Council — was that such children would be helped by their same-sex “parents” having access to the legal benefits of marriage. His question was, who would be harmed by that (or, alternatively, who benefits from the current law which prevents such same-sex “parents” from marrying)?

There are good answers to this question — see, for example, my FRC booklet, The Top Ten Harms of Same-Sex “Marriage.” Unfortunately, attorneys for the states seemed unprepared — or reluctant — to offer examples of such potential harms, suggesting only that we cannot know with certainty what the consequences would be. That aside, however, the kind of cost-benefit analysis Judge Posner was proposing is a fundamentally legislative task — not a judicial one. Whether costs outweigh benefits may help determine if a particular policy is wise — but it is not sufficient to determine if a policy is constitutional, or should be struck down by the courts.

Another judge in the three-judge panel, 57-year-old David Hamilton (appointed to a District Court position by Clinton and to the Appeals Court by Obama), was also skeptical of the state’s arguments. Hamilton, however, was far more measured in tone than Posner — and more balanced, asking challenging questions of the plaintiffs’ attorneys as well. Having warned each attorney that while they want to emphasize their strong points, the judges want to probe their weak ones, Hamilton pressed those backing the redefinition of marriage about one of Fisher’s arguments for Indiana — namely, “The position put forth by the plaintiffs in this case admit[s] of no limiting principle.”

In other words, as many have pointed out, the arguments put forth in support of same-sex “marriage” — such as “equality” and the freedom to marry whom you choose — could be equally applied to other types of unions, including polygamous or incestuous ones. That challenge was also pressed by the third judge, 65-year-old Ann Claire Williams (appointed by Reagan to a District Court and by Clinton to the Appeals Court). Even Posner, by far the most skeptical of “traditional” marriage, piled on in the polygamy discussion, asking, “How many people do you have a fundamental right to marry at one time? Just one? … I don’t understand — where do you draw the line?”

Attorneys for the plaintiffs mostly avoided the question or struggled to find an answer, with Ken Falk of the American Civil Liberties Union (ACLU) of Indiana falling back on his own form of “self-evident” truth, referring to “my mathematical diagram of marriage” in declaring that “if you have two people in it, regardless of their sexes … it’s going to look like marriage. If you have three or four people, it’s not going to look like marriage.” (Of course, for most of history, if it didn’t have a man and a woman, it didn’t “look like marriage.”)

Another Achilles’ heel for the marriage redefinition movement, despite a string of federal court victories since last year’s Supreme Court decision requiring federal recognition of same-sex unions that are legally recognized by states, is that no consensus has emerged about the legal or constitutional reasoning for declaring a “right” to same-sex “marriage.” The Supreme Court has said that the “liberty” interests protected by the “due process” clause of the 14th Amendment include a “fundamental right to marry,” which some courts have asserted also encompasses the right to marry a person of the same sex. However, the 7th Circuit judges seemed skeptical of that approach, with Hamilton saying, “Finding a federal right to marry that is undefined is a pretty problematic concept for substantive due process.” Even Posner was skeptical on this point, saying, “I think when you talk about fundamental rights … you get into a morass, right?”

Judge Hamilton asserted that “you’ve got a much stronger equal protection theory.” The problem for those seeking to overturn the marriage laws under “equal protection” is that most laws are presumed constitutional under the lenient “rational basis” test, which requires only that there be some conceivable “rational basis” for the classification in the law. Hamilton, therefore, raised the possibility that the differential treatment of same-sex couples might trigger “heightened scrutiny,” which places a heavier burden of proof upon the state to defend the law. “If we look strictly at the text,” Hamilton said, “what the statute does is classify based on sex… . So that would seem to point us in the direction of heightened scrutiny.”

Most courts, however, have viewed the “classification” as being based on sexual orientation rather than sex, and even attorney James Esseks of the ACLU, arguing in the Wisconsin case, admitted that 7th Circuit precedent does not apply heightened scrutiny for sexual orientation. (In reality, the “classification” in the marriage laws is based on “gender complementarity,” which is different from either of the other theories.) On the “heightened scrutiny” theory, Posner parted ways with Hamilton, declaring, “I don’t get any help from phrases like heightened scrutiny.” Posner, perhaps oblivious to what he was saying, even touched the third rail of debates over homosexuality by appearing to compare homosexuals to pedophiles and treat pedophilia as a “sexual orientation”:

If you were dealing with pedophiles, you wouldn’t say … any regulation of pedophiles was subject to heightened scrutiny because it’s an innate sexual orientation… . We don’t think of those terms when we’re dealing with all sorts of sexual compulsions, right? We just say, “This is obviously very harmful to other people.” So it’s illegal, even though these people can’t help it in many cases.

One thing that was disappointing in the oral arguments (in addition to Judge Posner’s vitriolic hostility to natural marriage) was the relatively weak defense offered by attorneys for the states. By focusing narrowly on the issue of accidental procreation (the one public concern that is absolutely unique to opposite-sex relationships), Indiana’s Fisher omitted broader state interests in encouraging procreation in general, and in encouraging the raising of children by both their mother and father. (Indeed, one of Judge Hamilton’s first statements to him was, “I would think that the state’s interest is equal regardless of whether the children are intended or unintended.”).

Assistant Attorney General Timothy Samuelson’s defense of Wisconsin’s law was even more vague, as he drew mockery from the judges for his reliance on “tradition” and “experience” as justifications for the one-man-one-woman definition. He was given little opportunity to develop a more technical argument he proposed regarding the difference between “negative” rights (such as protection from employment discrimination) and “positive” rights (such as access to the legal benefits of marriage). At one point, he said, “We defer to Mr. Fisher’s arguments [in the Indiana case] … [M]arriage provides a mechanism for tying unplanned children to their biological parents.” At another, he referred the judges to Supreme Court Justice Samuel Alito’s dissent in last year’s case striking down the federal definition of marriage (Alito had cited the increase in divorce rates following the adoption of no-fault divorce as an example of how changes in marriage laws can lead to unforeseen negative consequences).

In neither case did the state’s attorneys make assertions as to actual harms that might result from redefining marriage — forcing Judge Hamilton to raise the issue by mentioning friend-of-the-court briefs by pro-family professor Helen Alvare (who argues, “Redefining marriage in a way that de-links sex, marriage and children threatens to harm the most vulnerable Americans and exacerbate the ‘marriage gap’ responsible for increasing levels of social inequality in America”) and by authors Robert George, Sherif Girgis, and Ryan Anderson (who argue, “Redefining marriage would not extend its stabilizing norms, but undermine them across society.”) Fisher merely affirmed the state’s position is that they “can win without making that argument.”

Although all three judges seemed skeptical of the states codifying only natural marriage between a man and a woman, it remains unclear what argument will win in the 7th Circuit, given the lack of consensus on any constitutional rationale for striking those laws down, and the lack of a “limiting principle” to be placed upon such a redefinition of marriage.

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