Friday, August 29, 2014

Judge Posner's smackdown

By now you may have heard that the appeals from WI and IN, defending their marriage bans  to the 7th circuit didn't go so well.  And the star of the hearing was Reagan appointee Judge Richard Posner.  The Advocate pulls some of the highlights from the transcript.



Fisher: The issue here is to deal with what may be a fleeting moment of passion that leads to a child that nobody contemplated…

Judge Posner: Do you criminalize fornication?

No, no longer.

Would you like to? 
No, it's not at issue here.

It sounds like a way of dealing with this unintended child problem. 
It's one thing to criminalize—

You don't seem to like adoption as a way of dealing with it. 
That is not true. …

So why do you prefer heterosexual adoption to homosexual adoption? 
We don't.

Of course you do. You give all kinds of benefits to the heterosexual adoptive parents. ...
The benefits that you're talking about are not triggered based on sexual orientation, they're based on marital status.

Come on now, 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? … 
Judge Hamilton got in some zingers too
Judge Hamilton: Both you and Indiana have argued that what you really want to do is promote child births in marriage, right?

Samuelson: Correct. 
And encourage parents to stick together and raise those children, right?
Correct. 
I assume you're familiar with how that's been working out in practice over the last 25 or 30 years? … The proportion of births to unmarried mothers have increased by 53 percent in Wisconsin. … It's sort of like trying to focus on the mote in someone else's eye while ignoring the beam in one's own. …
Go to the Advocate to read more.  Court watchers think this one goes our way.

7 comments:

JCF said...

Hey, if you're an Angl-/Anglicanophile, something beautiful!

http://www.dailymail.co.uk/news/article-2735823/Don-t-look-Kaleidoscope-style-photos-England-s-churches-cathedrals-incredible-ornate-ceilings-glory.html

dr.primrose said...

As you've probably seen by now, bucking trend of previously unanimous cases going the other way, a federal judge has upheld the gay marriage ban in Louisiana -- http://www.latimes.com/nation/nationnow/la-na-nn-louisiana-marriage-ban-20140903-story.html#

IT said...

Yes, Judge Feldman seems to have bought the slippery slope, procreation, lifestyle choice arguments hook line and sinker. HE also seems a little unclear on the 14th Amendment. Your thoughts, Primrose?

IT said...

Yes, Judge Feldman seems to have bought the slippery slope, procreation, lifestyle choice arguments hook line and sinker. HE also seems a little unclear on the 14th Amendment. Your thoughts, Primrose?

Kevin K said...

This is pretty standard 14th Amendment analysis, at least pre-Windsor, and is similar to the 8th Circuit's decision rejecting a constitutional requirement of same sex marriage (also pre Windsor). Judge Feldman's principle focus was that sexual orientation is not a protected classification, subjecting the state law to the lowest scrutiny. The question seems to be is Justice Kennedy going to limit Windsor or extend it?

Kevin K said...

PS 7th Circuit affirmed district court on marriage bans.

dr.primrose said...

The 7th Circuit's opinion may be read at http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2014/D09-04/C:14-2526:J:Posner:aut:T:fnOp:N:1412339:S:0 .

This case and the Louisiana case are interesting contrasts. The Louisiana case adopts a pure rational basis test -- it there are any rationale reasons for the law that we can think of (even if the legislative body didn't think about them), the law is valid.

The 7th Circuit adopts a more stringent test (while admitting that it's not slotting it into one of the traditional categories) that offers more protection to classes of people with immutable characteristics that have been maltreated by society.

I think the 7th Circuit has the stronger case. The Supreme Court has never made gay and lesbian people a protected class but their cases (going back for some amount of time) have not applied a pure rationale basis test in these cases. They have treated gay and lesbian people as persons mistreated because of immutable characteristics.

The Louisiana case also treats gay and lesbian people as making conscious choices about their sexual attractions. The 7th Circuit treats sexual orientation as being largely immutable, based on scientific evidence. The Louisiana case expressly disregards expert opinion.

The 7th Circuit notes that permitting same-sex marriage helps, not hinders, children. It is not the first court to say so.