Daily Dispatches
Judge Richard Posner speaks at Harvard.
Wikimedia Commons/chensiyuan
Judge Richard Posner speaks at Harvard.

Appeals court judges take sides in marriage cases


Last week, the 7th U.S. Circuit Court of Appeals in Chicago heard arguments on marriage cases from Indiana and Wisconsin. Indiana state law upholds marriage between one man and one woman. Wisconsin has a constitutional amendmentdefining marriage that way.

Judge Richard Posner, a Reagan appointee, dismissed tradition out-of-hand as a justification for marriage. He said only “hate” is behind wanting to order society around one-man-one-woman unions and used the phrase “savage discrimination” to describe it.

A contentious argument broke out between Posner and Thomas Fisher, the attorney for Indiana, over the plight of foster children.

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“You should be wanting to enlist people as adopters. … It’s pathetic. You’ve got 10,000 foster care children, and don’t you want them to get adopted?” Posner asked Fisher.

Wisconsin’s attorney, Timothy Samuelson, got a similar grilling from Posner. Samuelson argued that the traditional definition of marriage is based on the experience of Western culture.

“Tradition per se is not a ground for continuing,” Posner said. “We’ve done a stupid thing for 100 years, 1,000 years. We’ll keep doing it because it’s a tradition?”

The other two judges were Ann Claire Williams, a Bill Clinton appointee, and David Hamilton, appointed by President Barack Obama. Hamilton pointed out that if the purpose of state policy is to promote marriage and procreation by heterosexuals, it has failed. Hamilton noted up to 90 percent of children are born to unwed mothers in some groups.

“It’s sort of like trying to focus on the mote in someone else’s eye while ignoring the beam in one’s own,” Hamilton said, referencing Scripture.

Posner added: “This policy of trying to channel births into marriages isn’t working. … It’s failing. Why not try something else?”

Utilitarianism seemed to drive some of the judges’ arguments. They seemed to have the idea that marriage fell apart after no-fault divorce laws passed, and there’s no going back, so what’s expedient now? James Essecks, the attorney for the Wisconsin gay couples challenging that state’s law, suggested if we really want to tie procreation to marriage, the state could give a tax credit to couples who get married before having children, an acknowledgement that policy can affect behavior, just as no-fault divorce preceded high divorce rates.


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