The oral arguments in the Seventh Circuit case involving the marriage statutes in Indiana and Wisconsin sounds like they were extremely uncomfortable for those states’ attorneys general. In a way, I feel bad for the two attorneys who had to argue the case, but then again, they were trying to steer an obviously sinking ship. Ed Brayton posted some highlights from the hearing. This bit between the judges and Indiana Solicitor General Thomas Fisher seems like the trial advocacy equivalent of being rapped on the hand with a ruler:
JUDGE POSNER: “You allow the homosexual couples to adopt. Why don’t you want their children to have the same advantages as children adopted by heterosexual couples?”
FISHER: “The question is what can we do to nudge heterosexual couples who may produce children, you know, unintentionally 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. It’s not in the context of adoption that marriage—”
JUDGE POSNER: “But you’re not answering my question. You’ve got millions of adopted children, and a lot of them—200,000 or more—are adopted by same-sex couples. Why don’t you want their children to be as well off as the adopted children of heterosexual couples?”
FISHER: “Of course we do…. [but] the marriage scheme is not set up with adoption in mind.”…
JUDGE WILLIAMS: “Wouldn’t you agree that marriage is not just about having children, but about raising children? You agree that there are two components?”
FISHER: “Oh, yes.”
JUDGE WILLIAMS: “Okay, then are you saying same-sex couples cannot successfully raise children?
FISHER: “Absolutely not.”JUDGE WILLIAMS: “Well, if Indiana’s law is about successfully raising children and you agree same-sex couples can successfully raise children, why shouldn’t the ban lifted as to them?”
FISHER: “I think the assumption is that with opposite-sex couples there is very little thought given during the sexual act, sometimes, to whether babies may be a consequence.
JUDGE WILLIAMS: “So because gay and homosexual couples actually choose to be parents, choose to take on that obligation, that difference of choice is—you’re, you’re setting that up differently than accidental. So I mean, here are people who want to have children, know they want to have children, it is not accidental, they make that commitment to raise the children. I just don’t get that, it’s another aspect of what Judge Posner is raising.”
FISHER: “And I think the working assumption there, your honor, is that, in that circumstance, the state doesn’t need to nudge those couples to stay together. There already is that working understanding. With opposite-sex couples it may be a fleeting moment of passion that leads to a child and that’s what we’re trying to address, trying to deal with the consequences.”
Actually, that seemed a bit more like this:
I’ll let Mr. Brayton take it from here:
Such a bizarre and incoherent argument. Apparently straight couples are so irresponsible that the state has to “nudge” them to stay together for the children, but gay couples are so committed to their children that they don’t have to. And Fisher thinks this justifies preventing gay couples from getting married? Does he think that if they do allow gay couples to get married, straight couples will break up despite the children just because they’re no longer given rights that gay couples don’t have?
I’d say that the lawyers for Indiana and Wisconsin put in a valiant effort in defense of an indefensible policy, but at the moment, all I feel like doing is stealing a bit from an ’80s movie: In federal appellate courts, there are no points for second place.
