Judge Richard Posner of the 7th Circuit Court is a moderate conservative with an unapologetic bias toward reality and logic. This bias makes him an ideal Slatecolumnist. It has also turned him into something of an iconoclast among his conservative colleagues, who frequently jettison prudence and precedent in order to achieve results that just happen to align with the Republican Party’s platform.
On Tuesday, Posner put his judicial independence front and center during marriage equality oral arguments at the 7th Circuit. While lawyers for Wisconsin and Indiana attempted to defend their state’s marriage bans, Posner issued a series of withering bench slaps that unmasked anti-gay arguments as the silly nonsense that they are. Reading this string of brutal retorts is fun enough—but it’s even better to listen to them delivered in Posner’s own distinctive cadence. With the help of my Slate colleague Jeff Friedrich, I’ve collected the most exhilarating, satisfying, and hilarious of the bunch.
Round 1: Posner vs. Indiana
“It’s a matter of indifference to you?”
Many of Posner’s sharpest inquiries revolved around the question of same-sex adoption. Thousands of gay couples in both Indiana and Wisconsin are raising children, which the state permits them to do. Given this reality, Posner asks Indiana Solicitor General Thomas Fisher, isn’t allowing gay marriage “better for the psychological health or the welfare” of gay people’s kids? Allowing same-sex parents to get married, after all, would bring them and their children a plethora of benefits. Fisher’s noncommittal answer, which bordered on callousness, brought out one of Posner’s harshest rebukes.
“Would you criminalize fornication?”
After asking Fisher why Indiana shouldn’t just “criminalize fornication” in order to deal with its “unintended child problem,” Posner returned to the child question, demanding of Fisher, “Why do you prefer heterosexual adoption to homosexual adoption?” When Fisher struggles to respond, Posner sighs, “Come on now. You’re going in circles.” He then asks why Indiana wants to punish children because “their parents happen to be homosexual.”
“Why does Indiana let sterile people marry?”
Posner points out that Indiana allows both sterile people and first cousins (over the age of 65) to marry. If marriage is all about biological reproduction, Posner wonders, aren’t these policies irrational? Fisher errs at first, claiming, “We don’t allow incest.” When corrected, he founders.
“You should be wanting to enlist people as adopters.”
Returning to the question of adoption, Posner asks Fisher: “Isn’t it much better for kids to be adopted? But if you allow same-sex marriage, you’re going to have more adopters, right? … You should be wanting to enlist people as adopters.” He then calls Indiana’s arguments “pathetic.”
“You haven’t read this? You don’t remember it? It didn’t make an impression?”
Toward the end of Posner’s colloquy with Fisher, he discusses an amicus brief by the Family Equality Council that discusses the demeaning effects of gay marriage bans on same-sex families. Posner asks Fisher whether he’s read the brief, noting that “it has a great deal of rather harrowing information.” Fisher waffles; Posner brings down the hammer.
Round 2: Posner vs. Wisconsin
“You have no idea.”
Posner’s first question to Wisconsin Assistant Attorney General Timothy Samuelson is simple: Why doesn’t Wisconsin permit joint adoption by same-sex couples? Samuelson has no answer. Posner is not pleased.
“How can tradition be a reason for anything?”
Samuelson attempts to argue that Wisconsin’s tradition of allowing only opposite-sex marriage is a rational basis for barring same-sex couples from the institution. Posner sinks in his claws, drawing painful, direct parallels between the current case and Loving v. Virginia. The racists who opposed interracial marriage, Posner notes, “make the same arguments you would make.” What’s the difference? When Samuelson releases a bizarre string of nonsense about common law, Posner audibly mutters, “Oh no.”
Posner refuses to let Samuelson wiggle out of his Loving problem. “You argue that democracy insulates legislation from constitutional invalidation,” he chides Samuelson. “You have to have something better. ... That’s the tradition argument.” Sure, America has a tradition of blocking certain people from marriage. But “experience based on hate” is not a constitutionally valid argument.
“Who’s being harmed? Answer my question!”
In the day’s testiest exchange, Posner pushes Samuelson to identify a single rational basis for his state’s anti-gay-marriage law. Who is being helped, Posner wonders, by gay marriage bans? When Samuelson claims that “society” is helped by gay marriage bans, Posner pushes back: “How is it being helped? You’re not trying to force homosexuals into heterosexual marriage. So what is the harm of allowing these people to marry? Does it hurt heterosexual marriage? Does it hurt children?”
When Samuelson’s yellow light flashes, signaling that he’s running out of time, Posner encourages him to continue. Judge Ann Claire Williams jumps in, informing Samuelson that the light “won’t save you.” The courtroom erupts in laughter. A defeated Samuelson responds, “It was worth a shot.”
“You have no idea?”
Samuelson’s argument is centered around the idea that gay marriage harms … someone. But whom? Posner demands an answer. Samuelson suggests that gay marriage would harm society at large. But how? Samuelson shrugs; he just doesn’t know. It’s a painful conclusion to a judicial bloodbath, a cringing moment of bathos that reveals the state’s argument for the intellectual joke that it is. Let’s hope the Supreme Court is listening.