Indiana's effort to reverse an order that overturned the state's ban on gay marriage has squandered public time and resources. But under relentless questioning from Judge Richard Posner and two of his colleagues, the state's presentation before a 7th Circuit Court of Appeals panel Tuesday went from wasteful to embarrassing.
Posner is a jurist and legal scholar of the first order. Appointed to the court in 1981 by President Ronald Reagan, he has written almost 40 books and is a senior lecturer at the University of Chicago Law School. He is generally regarded as a moderate conservative.
But there was nothing moderate about Posner's grilling of Indiana Solicitor General Thomas Fisher and attorney Timothy Samuelson, who represented the state of Wisconsin, which has joined with Indiana in attempting to maintain their bans.
As The Journal Gazette's Niki Kelly reported, Fisher argued that Indiana needs to limit marriage to heterosexuals so that unintended children would be raised in durable relationships.
But Posner pointed out that Indiana allows sterile heterosexual couples to marry, and that it allows first cousins older than 65 to marry precisely because they're unable to procreate at that age. Pointing out that gay couples are allowed to adopt children, he asked Fisher what benefit to the state could outweigh the harm done to children when their adopting parents are not allowed to marry. At various points, Posner called Fisher's arguments “pathetic” “ridiculous” and “absurd.”
But possibly the most devastating exchange occurred when Samuelson attempted to make what Posner called “the tradition argument.”
Referring to a 1967 decision by the Supreme Court, Posner said, “There was a tradition of not allowing black and white, and, actually, other interracial couples from marrying. It was a tradition. It got swept aside. Why is this tradition better?”
The three-judge appeals panel may take several weeks to deliver its ruling, and the issue is likely to be taken up by the Supreme Court during the coming year.
But it's unlikely that anyone, at any level, will do a better job of shredding the arguments for banning gay marriage better than the judges in Chicago did Tuesday.