Posner Flattens Defenses for Gay Marriage Bans

     CHICAGO (CN) – Claims that marriage exists to reduce the number of accidental births outside wedlock failed to save Indiana and Wisconsin’s same-sex marriage bans before the 7th Circuit.
     The Thursday decision comes nine days after the federal appeals court heard oral arguments on the constitutionality of Indiana and Wisconsin’s gay-marriage bans.
     Indiana argued that marriage is meant to “nudge” opposite-sex couples toward stable relationships when they unintentionally conceive a child, because marriage provides a safer environment for children.
     “All this is a reflection of biology: men and women make babies; same sex couples do not. It’s purely utilitarian,” Indiana Deputy Attorney General Thomas Fisher said, trying to persuade Judge Richard Posner and his colleagues on the panel that the law was in no way based on discrimination against homosexuals.
     Wisconsin argued more generally that limiting marriage to heterosexuals is tradition, and tradition is a valid basis for limiting legal rights.
     The state was unable, however, to differentiate its position from the one rejected in Loving v. Virginia, the 1967 Supreme Court decision invalidating laws against interracial marriage.
     Finding no reasonable basis for forbidding same-sex marriage, the judges struck down the bans.
     “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,” Posner wrote. “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.”
     Indiana had argued that homosexual relationships are essentially free riders on the marriage system because they don’t procreate, and therefore the government has no interest in recognizing their marriages.
     But if this were truly the case, “the state would not allow an infertile person to marry,” Posner wrote.
     “Indeed it would make marriage licenses expire when one of the spouses (fertile upon marriage) became infertile because of age or disease,” he added (parentheses in original.)
     The state’s logic would lump infertile couples among these free riders. “Why are they allowed to reap the benefits accorded marriages of fertile couples, and homosexuals are not?” Posner asked.
     In fact, this argument creates a host of other problems, as it would permit infertile family members to marry one another, the court found.
     “Indiana has thus invented an insidious form of discrimination: favoring first cousins, provided they are not of the same sex, over homosexuals,” the 40-page decision states. “Elderly first cousins are permitted to marry because they can’t produce children; homosexuals are forbidden to marry because they can’t produce children. The state’s argument that a marriage of first cousins who are past child-bearing age provides a ‘model [of] family life for younger, potentially procreative men and women’ is impossible to take seriously.”
     Posner also returned to the question he asked at oral argument: “You permit homosexual couples to adopt. Wouldn’t it be better for the adopted children if their parents were married?,” to which Fisher replied, “I don’t know! It’s up to the Legislature.”
     Given Indiana’s interest in providing a safe home for its children, “the state should want homosexual couples who adopt children – as, to repeat, they are permitted to do – to be married, if it is serious in arguing that the only governmental interest in marriage derives from the problem of accidental births,” the judge said (emphasis in original).
     Posner added in parentheses: “We doubt that it is serious.”
     Wisconsin’s arguments did not fair any better with the judges.
     “Tradition per se has no positive or negative significance,” Posner said. “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.” (Parentheses in original.)
     Judges Ann Williams and David Hamilton rounded out the panel.

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