The 7th U.S. Circuit Court of Appeals ruled yesterday that same-sex couples in Wisconsin and Indiana have the right to marry. My spouse and I met in Wisconsin (although we don’t live there anymore), so I’m especially pleased by this win. Making it even better was reading the ruling of Judge Richard Posner, who had grilled marriage equality opponents mercilessly during the hearing. Read on for highlights of his delightfully snarky decision.
For the purpose of this post, I’m going to focus on Posner’s spot-on comments regarding same-sex couples and children, and leave out all of his equally important but less fun-to-read constitutional arguments. I commend you to any of the other major LGBT news sources for the latter, if that’s your thing. (And if this post is still too long for you, just read the pull quotes. I’ve put some of the best tidbits there.)
Formally these cases are about discrimination against the small homosexual minority in the United States. But at a deeper level … they are about the welfare of American children.
Posner starts right in on the first page, saying, “Formally these cases are about discrimination against the small homosexual minority in the United States. But at a deeper level … they are about the welfare of American children.”
He explains that the lawyers for Indiana and Wisconsin relied most on the argument that the government encourages heterosexuals to marry so there will be fewer “accidental births” outside of marriage. These births can lead to children being raised by a single mother or by foster care. Posner isn’t buying it: “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.”
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.
He continues:
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. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents.
Encouraging marriage, he says, is not so much about having fathers take responsibility for unintended children, since state law already requires them to contribute to child support, but rather “about enhancing child welfare by encouraging parents to commit to a stable relationship in which they will be raising the child together. He notes that by the states’ logic, infertile heterosexual couples should not be allowed to marry, either.
He then knocks down a “strange argument”:
The state tells us that “non-procreating opposite-sex couples who marry model the optimal, socially expected behavior for other opposite-sex couples whose sexual intercourse may well produce children.” That’s a strange argument; fertile couples don’t learn about child-rearing from infertile couples. And why wouldn’t same-sex marriage send the same message that the state thinks marriage of infertile heterosexuals sends—that marriage is a desirable state?
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.
After that he piles on the snark:
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 combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, 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.
The states of Indiana and Wisconsin both overlooked the fact, too, that same-sex couples can help alleviate the problem of unwanted children by adopting them, Posner says, and proceeds with merciless logic:
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, this should be true whether the child’s parents are natural or adoptive. . . . Married homosexuals are more likely to want to adopt than unmarried ones if only because of the many state and federal benefits to which married people are entitled. And so same-sex marriage improves the prospects of unintended children by increasing the number and resources of prospective adopters. Notably, same-sex couples are more likely to adopt foster children than opposite-sex couples are.
The more willing adopters there are, not only the fewer children there will be in foster care or being raised by single mothers but also the fewer abortions there will be.
Posner himself is a Reagan appointee and has been considered a moderate conservative, but once told NPR, “I’ve become less conservative since the Republican Party started becoming goofy.” His willingness to confront more conservative folks is evident when he brings abortion into the mix, saying, “The more willing adopters there are, not only the fewer children there will be in foster care or being raised by single mothers but also the fewer abortions there will be.”
If a child’s same-sex parents are married, however, the parents can tell the child truthfully that … the child can feel secure in being the child of a married couple.
He weighs not only children’s well-being soon after birth, but also during their school years, posing the example of a child who comes home from school upset that his classmates all have a mom and a dad:
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. . . .
If marriage is better for children who are being brought up by their biological parents, it must be better for children who are being brought up by their adoptive parents. The state [of Indiana] 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. (We doubt that it is serious.)
Wisconsin doesn’t even allow same-sex couples in domestic partnerships to adopt jointly, Posner says, noting, “The refusal harms the children, by telling them they don’t have two parents, like other children, and harms the parent who is not the adoptive parent by depriving him or her of the legal status of a parent.”
The grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.
He then leaves no question about where he stands, saying, “More than unsupported conjecture that same-sex marriage will harm heterosexual marriage or children or any other valid and important interest of a state is necessary to justify discrimination on the basis of sexual orientation. As we have been at pains to explain, the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.”
Alas, despite this total implausibility, the ruling is stayed pending appeal in Wisconsin and for at least three weeks (if not longer) in Indiana, according to Equality Case Files. Still, this is a big win, and makes it more likely that the U.S. District Court ruling in Louisiana Wednesday, which said the state could prevent same-sex couples from marrying, will be only a temporary setback as marriage equality moves closer to an expected U.S. Supreme Court showdown.