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.