Judge Is Scathing to Marriage Equality Opponents on Matter of Children

As a general rule of life, I try not to gloat. But yesterday’s arguments in the federal marriage equality case in Indiana and Wisconsin were so overwhelmingly on the side of same-sex couples and our children that I can’t help but feel a little smug. One judge was particularly scathing in his questions to marriage equality opponents.

Judge Richard Posner, a Republican Reagan appointee who’s been called “America’s most cited legal scholar,” took the lead on the three-judge panel, which also included Democratic appointees Ann Claire Williams and David Hamilton. Posner pressed Indiana Solicitor General Thomas Fisher, who argued for the marriage ban, particularly hard on issues related to children. Let me take you through the discussion, as Posner provides rather an epic judicial takedown of the silly arguments against letting same-sex couples marry.

After sharing statistics on the thousands of children adopted by same-sex couples in Indiana, Posner asked, “Wouldn’t it be better for these adopted children if their same-sex parents were married?”

When Fisher said he didn’t know the answer, Posner had him do a thought experiment:

Think back to when you were six. Suppose you’ve been adopted by same-sex parents. You come home one day from school, and you say, “You know, all the other kids in my class, they have a mom and a dad. I just have two dads (or two moms). And you know, what’s that about?” And suppose the parents say, “Well, you know, in our society, an adult can marry a person of the opposite sex or a person of the same sex. But, you know, it’s marriage in both cases, so your classmates … their parents are married, your parents are married. So there’s nothing to worry about.”

Now contrast that with the situation where the parents say to the child, “Well, you know, we’re your parents, but we’re not allowed to be married, so it’s just a difference.” Now which do you think is better for the psychological health, for the welfare of this child? To have the [married] same-sex couple or the unmarried?

Fisher replied, “Your Honor, I don’t feel it’s my job to answer that question.”

Posner helped him do so, noting that married couples in Indiana are “better off” and have “all sorts of benefits” in the state. “Doesn’t that make the kids better off?” he asked Fisher, who answered, “Undoubtedly.”

Posner kept up the pressure, saying, “You are concerned with the unfortunate children produced by accidental births. I’m saying many of these are adopted by same-sex couples, and these children would be better off if their parents can marry. No? Isn’t that obvious?”

Later, Posner asked him, “Why do you prefer heterosexual adoption to homosexual adoption?” and when Fisher said, “We don’t,” called him on it. “Of course you do,” Posner insisted. “You give all sorts of benefits to the heterosexual adoptive parents, and no benefits to the homosexual adoptive parents. You must have a reason for that.”

Fisher replied that the benefits were not “triggered based on sexuality,” but on marital status.

One can hear the exasperation in Posner’s voice. “Come on now,” he said. “You’re going in circles. The question is why do you want the children who are adopted by same-sex couples … to be worse off, because they don’t have these financial and psychological benefits of having married parents?”

Fisher kept coming back to the argument that marriage is about encouraging heterosexual couples not to have children unintentionally, and to help them “appreciate the consequences of sexual behavior.” Posner didn’t let him get away with avoiding his question, however, and kept asking him why he didn’t want the children of same-sex couples to be as well off.

Judge Williams then asked Fisher, “Wouldn’t you agree that marriage is not just about having children, but about raising children?” Fisher agreed. “Then are you saying that same-sex couples cannot successfully raise children?”

Fisher answered, “Absolutely not.” Williams then asked him why the marriage ban shouldn’t be lifted, saying, “Here are people who actually want to have children, know they want to have children, it is not accidental, they make that commitment to raise the children.”

Posner then noted that there are 400,000 kids in foster care in the United States, 10,000 of whom are in Indiana. He asked Fisher, “If you allow same-sex marriage, you’re going to have more adopters, right?” Fisher said he didn’t know. Posner explained it for him:”Well, it’s much cheaper to adopt a child if you’re married because you get all these benefits from the state and the federal government.”

Towards the end of the arguments, Posner referred to the amicus curiae brief of the Family Equality Council, noting, “It has a great deal of rather harrowing information about the problems that are created for children and their parents in the case of same-sex couples not allowed to be married in Indiana or Wisconsin who have adopted children, and how the children feel when they grow up, and all that kind of horrible things.” He cites the example of a child with two moms. One of the moms died, and the other wasn’t notified because they weren’t married. “What’s on the other side of the scale? What’s outweighing these costs?” he asked Fisher.

Fisher just kept coming back to marriage helping heterosexual couples not have unintentional children. One could tell by the tone of Posner’s voice that he wasn’t buying it. “Is there some empirical basis for anything you have said?” he asked at one point.

I kind of wish Posner had given some nod to the children of same-sex parents who don’t come through the foster care and adoption system but are the biological children of one of their parents. They deserve to have the benefits of married parents, too. I suppose that because some of these children are the children of previous, different-sex spouses, that would have muddied the legal waters for the purpose of the argument, though.

Once again, it’s worth noting that Posner is a Republican appointee, and he’s tread a careful line on LGBT issues in the past. In 2011, as I reported for Keen News Service, he was on another 7th Circuit panel and upheld a lower court ruling that students have a First Amendment right to wear shirts stating “Be Happy, Not Gay.” The slogan was “only tepidly negative,” Posner wrote for the panel, unlike more overtly confrontational slogans such as “Homosexuals go to Hell.” The school had also not proved the shirt would cause a “substantial disruption.” Nevertheless, opined Stuart Biegel, a faculty member at the UCLA School of Law who has written extensively about the rights of LGBT students, Posner did show some “sensitivity to what LGBT youth were going through,” while he also “set forth some guidelines that try to respect everybody’s free speech rights.”

Even if you don’t tend to follow legal wrangling, I also encourage you to listen to at least the first 15 minutes or so of yesterday’s arguments while you’re doing the dishes or folding laundry. Posner’s disbelieving, take-no-bullsh** tone is priceless. I can’t wait for the actual ruling. While I don’t like to count my chickens early, I’m pretty hopeful about this one.