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The future of marriage rights for same-sex couples does not depend on the outcome of the legal challenges to the bans enacted in Indiana and Wisconsin. So gay rights advocates can allow themselves to feel sympathy for the state’s attorneys who bravely tried to defend the measures this week [Aug. 26] before a relentlessly dubious panel of federal appeals court judges.
Indiana’s solicitor general Thomas Fisher and Wisconsin assistant attorney general Tim Samuelson had trouble getting any words in edgewise during separate, hour-long sessions before the Seventh U.S. Circuit Court of Appeals. Led by the Seventh’s Circuit idiosyncratic conservative Richard Posner, the three judges peppered Fisher and Samuelson virtually nonstop with questions — or outright assertions — challenging any of their rationales for prohibiting same-sex couples from marrying.
The Seventh Circuit discloses the judges randomly selected for panels only on the day of argument; so Fisher and Samuelson had no advance warning of just how rough their time at the lectern was going to be. The court is overwhelmingly Republican, with 10 of the 14 active and senior judges appointed by GOP presidents.
The panel selected, however, could not have been more favorable for the gay and lesbian plaintiffs looking for a favorable ruling. Besides Posner, the panel also included Ann Williams, a black woman appointed to the district court by President Ronald Reagan but elevated to the appeals court by President Bill Clinton. The third member was Thomas Hamilton, who was President Obama’s first appellate court nominee.
Fisher, first to the lectern on Tuesday, opened by saying he wanted to make three points in defending Indiana’s definition of marriage as limited to opposite-sex couples. Judging from the political rhetoric over the issue, one might have expected Fisher to talk about the threat to traditional marriage and the potential harm to children in same-sex households.
Instead, Fisher listed arguments better suited to a law school exam than the political arena. First, he said that the Supreme Court’s one-sentence decision in 1972 rejecting same-sex marriage was still good law and could be changed, if at all, only by the Supreme Court itself. Second, he contended that the arguments for gay marriage had “no limiting principle” — in effect, that a right to polygamous marriage would naturally follow. And, third, Fisher insisted that there was no basis to infer constitutionally impermissible “animus” on the part of the legislators who adopted the opposite-sex definition of marriage.
Fisher had no chance to elaborate on any of those briefly stated positions before Posner forcefully changed the subject. What about the children already being raised in same-sex households? Posner asked. Wouldn’t those children want their parents to be married?
Fisher showed no sign of having prepared to answer this thoroughly predictable question. “I don’t think it’s my job to answer that question,” he said when Posner paused long enough to allow him to respond. He fared no better later when he said that limiting marriage to opposite-sex couples helped “channel potentially procreative couples into relationship that are durable and long-lasting.” Hamilton and Williams were both unmoved. “I just don’t get that,” Williams said curtly.
Samuelson had no better luck defending Wisconsin’s constitutional amendment banning gay marriage. Among other points, the state’s attorney tried tradition and legislative prerogative. “Do you have anything besides tradition?” Posner asked. Samuelson tried to reply, but Posner kept at it. “You don’t seem to have any arguments,” he said.
Later, Posner was equally dismissive of legislative prerogative. “You’re back to the argument that legislative decisions are sacred,” he said. What harm would result from allowing gays to marry? Posner asked. “Frankly, we don’t know what is the harm,” Samuelson conceded. Samuelson saw the uncertainty as an argument for hesitating, but Posner would have none of it. “You could say that about every constitutional challenge,” he said.
Lawyers for the plaintiffs had their own bad moments at the lectern. In the Indiana case, Camilla Taylor, a lawyer in Lambda Legal Defense Fund’s Chicago office, stumbled a bit when Posner asked her to define the due process right to marriage that the plaintiffs were claiming. When Posner insisted the case was really about equal protection, Taylor refused to budge: “We think we win on both,” she said.
In the Wisconsin case, James Esseks, director of the American Civil Liberties Union’s Lesbian, Gay, Bisexual, and Transgender and AIDS Project, got a dose of Posner when he argued for applying “heightened scrutiny” to the gay marriage bans. “I have to tell you, I don’t get any help from phrases like heightened scrutiny,” Posner said.
Despite those moments, reporters who covered the arguments in the Chicago courtroom and those who listened to the audio afterward were unanimous in predicting a 3-0 ruling for the plaintiffs to strike down the Indiana and Wisconsin laws. But the eventual rulings will be of little consequence. Two federal appeals courts have already ruled gay marriage bans unconstitutional: the Tenth Circuit in separate decisions in Utah and Oklahoma cases and the Fourth Circuit in Virginia cases.
The plaintiffs in those cases have now joined the states in urging the Supreme Court to take up the issue, in the new term that starts on Oct. 6. Unless the justices find some reason to hesitate, the gay marriage showdown is imminent, and a make-or-break ruling due by the end of June 2015.
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