Less than two weeks after roughing up attorneys for the states of Wisconsin and Indiana in a heated oral argument, a three-judge panel of the Chicago-based U.S. Court of Appeals for the 7th Circuit issued a unanimous decision in Baskin v. Bogan, 2014 WL 4359059 (September 4, 2014), striking down the bans on same-sex marriage in those states. Writing for the panel, Circuit Judge Richard Posner, one of Ronald Reagan’s earliest judicial appointees in 1981, decisively rejected all the states’ arguments in support of their anti-marriage laws, stating that “the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.”
With stays pending appeal in effect in both states, the 7th Circuit ruling did not effect any immediate practical change. Both states promptly signified that they would petition the Supreme Court for review.
Judge Posner’s forty-page opinion was telegraphed by his questioning during the oral argument, for the issues that he raised and pressed repeatedly dominate his written analysis. His first questions to the attorney for Indiana concerned the welfare of children — the children being raised by same-sex couples in Indiana whom the state prohibits from marrying and whose out-of-state marriages are denied legal recognition. And his opinion starts in much the same way: “Formally these cases are about discrimination against the small homosexual minority in the United States. But at a deeper level, as we shall see, they are about the welfare of American children. The argument that the states press hardest in defense of their prohibition of same-sex marriage is that the only reason government encourages marriage is to induce heterosexuals to marry so that there will be fewer ‘accidental births,’ which when they occur outside of marriage often lead to abandonment of the child to the mother (unaided by the father) or to foster care. Overlooked by this argument is that many of those abandoned children are adopted by homosexual couples, and those children would be better off both emotionally and economically if their adoptive parents were married.”
During the oral argument, all three judges on the panel (Posner being joined by Obama appointee David Hamilton and Clinton appointee Ann Claire Williams) were skeptical about treating this as a “fundamental right to marry” case, expressing concern about how such a right could be described in a way that would not open up arguments about a constitutional right to polygamy or incest. Unlike the panel majorities in the 4th and 10th Circuits, who based their marriage equality rulings on the fundamental rights theory, the 7th Circuit panel preferred to take the equal protection route. That yielded a double hit from this opinion: Not only did the court hold that the states had no rational basis for denying marriage to same-sex couples, but it also ruled, in line with a decision earlier this year by the San Francisco-based 9th Circuit, that claims of anti-gay discrimination by the government are subject to heightened scrutiny, placing the burden on the government to show that its discriminatory law significantly advances an important government policy.
Most importantly, however, Posner’s opinion for the panel is sheer fun to read because of his plain-speaking, cut-through-the-cant style of dealing with ridiculous arguments. When he finds an argument ridiculous, he does not politely abstain from commenting, in the manner of some of his more restrained judicial colleagues. He cuts to the chase and calls ’em as he sees ’em. Herewith some choice examples:
“Our pair of cases is rich in detail but ultimately straight-forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction — that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended — is so full of holes that it cannot be taken seriously.”
“Because homosexuality is not a voluntary condition and homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world, the disparagement of their sexual orientation, implicit in the denial of marriage rights to same-sex couples, is a source of continuing pain to the homosexual community.”
“It is apparent that groundless rejection of same-sex marriage by government must be a denial of equal protection of the laws, and therefore that Indiana and Wisconsin must to prevail establish a clearly offsetting governmental interest in that rejection. Whether they have done so is really the only issue before us, and the balance of this opinion is devoted to it — except that before addressing it we must address the states’ argument that whatever the merits of the plaintiffs’ claims, we are bound by Baker v. Nelson to reject them. . . Baker was decided in 1972 — 42 years ago and the dark ages so far as litigation over discrimination against homosexuals is concerned. Subsequent decisions such as Romer v. Evans, Lawrence v. Texas, and United States v. Windsor are distinguishable from the present two cases but make clear that Baker is no longer authoritative. At least we think they’re distinguishable. But Justice Scalia, in a dissenting opinion in Lawrence, joined by Chief Justice Rehnquist and Justice Thomas, thought not. He wrote that ‘principle and logic’ would require the Court, given its decision in Lawrence, to hold that there is a constitutional right to same-sex marriage.”
Nothing like enlisting Scalia on your side in a gay rights decision. . .
After extensively criticizing Indiana’s “channeling-procreation” argument and pointing out its inconsistency with the state’s convoluted rules concerning marriages between elderly first cousins, Posner focused on the “irresponsible procreation” argument, and observed: “Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combinations of sticks and carrots) to marry, but that gay couples, unable as they are to produced children unwanted or wanted, are model parents — model citizens really — so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”
He also points out that if Indiana and Wisconsin are trying to reduce out-of-wedlock births by denying marriage to same-sex couples, their strategy is not working, citing statistics showing the rate of children born in such circumstances went up in each state after they adopted explicit bans on same-sex marriage. He also pointed out that gay couples are more likely to adopt children than straight couples, and many of those children will be the out-of-wedlock children surrendered for adoption by single mothers. “If the fact that a child’s parents are married enhances the child’s prospects for a happy and successful life, as Indiana believes not without reason,” he wrote, “this should be true whether the child’s parents are natural or adoptive. The state’s lawyers tell us that ‘the point of marriage’s associated benefits and protections is to encourage child-rearing environments where parents care for their biological children in tandem.’ Why the qualifier ‘biological’? The state recognizes that family is about raising children and not just about producing them. It does not explain why the ‘point of marriage’s associated benefits and protections’ is inapplicable to a couple’s adopted as distinct from biological children.”
He suggested that letting same-sex couples raising adopted children marry would provide emotional comfort to their children. “Suppose such a child comes home from school one day and reports to his parents that all his classmates have a mom and a dad, while he has two moms (or two dads, as the case may be). Children, being natural conformists, tend to be upset upon discovering that they’re not in step with their peers. If a child’s same-sex parents are married, however, the parents can tell the child truthfully that an adult is permitted to marry a person of the opposite sex, or if the adult prefers as some do a person of his or her own sex, but that either way the parents are married and therefore the child can feel secure in being the child of a married couple. Conversely, imagine the parents having to tell their child that same-sex couples can’t marry, and so the child is not the child of a married couple, unlike his classmates.”
Judge Posner took apart the argument by Wisconsin’s lawyer that “tradition” justifies the marriage ban. “Tradition per se has no positive or negative significance,” he wrote. “There are good traditions, bad traditions pilloried in such famous literary stories as Franz Kafka’s ‘In the Penal Colony’ and Shirley Jackson’s ‘The Lottery,’ bad traditions that are historical realities such as cannibalism, foot-binding, and suttee, and traditions that from a public-policy standpoint are neither good nor bad (such as trick-or-treating on Halloween). Tradition per se therefore cannot be a lawful ground for discrimination — regardless of the age of the tradition.” He went on to quote the same passage from Oliver Wendell Holmes that the late Justice Harry Blackmun cited in his dissent from the infamous 1986 Supreme Court sodomy case, Bowers v. Hardwick: “Holmes thought it ‘revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” Posner helpfully added that the English King Henry IV died in 1413. To show the age of the tradition underlying this marriage ban, he went on to quote Leviticus 18:22, and concluded on this point, “If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a harmless anachronism; it is a violation of the equal protection clause.”
Responding to Wisconsin’s argument about “thousands of years of collective experience” showing that different-sex marriage is “optimal for the family, society, and civilization,” Posner pointed out that Wisconsin provided no evidence in support of this claim, and then he listed several countries that today allow polygamy, adding, in a little flourish, “parts of Utah.” “But suppose the assertion is correct?” he asked. “How does that bear on same-sex marriage? Does Wisconsin want to push homosexuals to marry persons of the opposite sex because opposite-sex marriage is ‘optimal?’ Does it think that allowing same-sex marriage will cause heterosexuals to convert to homosexuality? Efforts to convert homosexuals to heterosexuality have been a bust; is the opposite conversion more feasible?”
As to the contention that allowing same-sex marriage will harm society, Posner pointed to estimates of the gay population ranging from 1.5% to 4%, and concluded: “Given how small the percentage is, it is sufficiently implausible that allowing same-sex marriage would cause palpable harm to family, society, or civilization to require the state to tender evidence justifying its fears; it has provided none.” He pointed out that the states had provided no evidence that “any heterosexuals have been harmed by same-sex marriage,” and observed that even though some people might be “distressed by the idea or reality of such marriage,” this could not count as a harm that would justify the ban. Even though many people disapproved of or were offended by interracial marriage and sodomy, the Supreme Court struck down laws against both.
As to the argument by Indiana and Wisconsin that the popularly enacted marriage amendments should enjoy some immunity from constitutional attack, Posner responded: “Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.”
Although the court found no rational basis for the marriage bans, and thus could have avoided ruling on whether sexual orientation discrimination merits heightened scrutiny, Posner took that issue on, rejecting the states’ arguments that gay people are a political powerful group that needs no help from the courts. The marriage amendment passed in Wisconsin would surely argue otherwise. Posner emphasized the history of anti-gay discrimination — which he characterized during oral argument as “savage”, the extensive scientific literature on the issue of immutability, and the lack of relevance of sexual orientation to a person’s ability to contribute to society, finding that all the factors for finding a “suspect classification” applied to sexual orientation. While not strictly necessary to support the court’s ruling, this finding may be very useful in future cases in the 7th Circuit challenging discriminatory state policies.
With this opinion, three federal courts of appeals have ruled in favor of marriage equality, and it is widely predicted that the 9th Circuit will add to that number after hearing arguments on September 8. Less certain is the outcome in the Cincinnati-based 6th Circuit, which heard arguments weeks before the 7th Circuit but has yet to issue its opinion. (Posner is a notoriously fast writer of judicial opinions, and this one bears the hallmarks of haste, including one page where some lines of text seem to have been omitted from the opinion as first released by the court.) Appeals are now pending in the 5th Circuit, where Texas has appealed a pro-marriage equality ruling and plaintiffs are about to appeal an absurdly reasoned federal anti-marriage ruling from Louisiana. On the same day the 7th Circuit ruled, Florida Attorney General Pamela Bondi announced that she had filed a notice of appeal with the 11th Circuit from a recent federal court marriage equality ruling in that state. There will be no marriage equality rulings from the 2nd or 3rd Circuits, as every state in both circuits already allows same-sex couples to marry, either by legislation or court order. The Boston-based 1st Circuit might still be heard from; even though all the states in the circuit have marriage equality, its jurisdiction also covers Puerto Rico, where a lawsuit challenging the commonwealth’s marriage ban is pending. The 8th Circuit, where cases are pending in several district courts, has yet to be heard from in the current round of litigation, although it rejected a challenge to Nebraska’s marriage amendment in 2006. The 7th Circuit’s ruling brings closer the possibility that marriage equality might be achieved nationwide through circuit court opinions without Supreme Court intervention, if that court were to let petitions accumulate and denying them all once the boards have been swept clean. But one dissenting circuit would virtually guarantee Supreme Court review.
Attorneys from Lambda Legal and the Indiana and National ACLU argued the case for plaintiffs before the 7th Circuit, while the states of Indiana and Wisconsin were represented by the Indiana Solicitor General and a Wisconsin Assistant Attorney General. It seems likely that the Republican governors of both states will petition the Supreme Court for review, although Wisconsin’s governor has been less outspoken than Indiana’s in opposition to same-sex marriage. Wouldn’t it be grand if both read Posner’s extremely persuasive opinion and followed the example of Pennsylvania’s Republican governor in dropping further appeals?