“You don’t seem to have any reasons.” Posner eviscerates arguments for “traditional” marriage laws

In oral arguments for the gay marriage case Wolf v. Walker (mp3) on Tuesday, Judge Richard Posner took aim at Wisconsin’s Attorney General Timothy Samuelson right of the gate.

Posner: “Why doesn’t Wisconsin permit joint adoption by same-sex couples?”
Samuelson: “Uh, respectfully your honor, uh, that’s a question for the legislature, uh I don’t have a specific answ-”
Posner: “You have no idea.”

Samuelson went on to fumble out a response about a circuitous methods for allowing gays to petition for joint-custody.

Judge Posner: “Why are all those obstacles strewn in the path of these people? I don’t get it.”
AG Samuelson: “That’s a legislative decision.”
Posner: “You mean you can’t think of any reason for it.”
Samuelson: “Well, the statute is written towards the general rule, not the exception. The general rule is for opposite-sex couples.”
Posner: “Why is that?”
Samuelson: “Uh, because that’s what the legislature said.”
Posner: “Why? Does it have a reason? Or it doesn’t need a reason, or what?”
Samuelson: “Well, I think there’s several reasons. I think tradition is one of the reasons.”
Posner: “How can tradition be a reason for anything? I don’t get that. That’s again the Loving case, right? The tradition of forbidding interracial marriage went back to colonial times. It was two hundred years old by the time Loving came along.”
Samuelson: “I think Loving was a deviation from the common law, rather than a codifying of…”
Judge David Hamilton: “WHAT?”
Posner: “Oh no, no… [laughs, scoffs] ‘It’s the common law’! Look, interracial marriage had been forbidden in the colonies and in many, many states–not just southern, but western–for literally, well, more than 100 years, so why wasn’t that a tradition?”
Samuelson: “It’s distinguishable, it’s a different tradition.”
Posner: [laughs] “Well, of course it’s a different tradition! So in other words, tradition per se is not a grounds for continuing. We’ve been doing this stupid thing for 100 years, 1000 years, we’ll keep doing it, because it’s tradition. You wouldn’t make that argument.”
Samuelson: “Well we’re not making that argument.”
Posner: “Don’t you have to have some empirical, or practical, or common-sense basis for barring these marriages? I mean, what’s the basis? I didn’t get anything out of your brief that sounded like a reason for doing this.”
Samuelson: “Our position is that tradition is based on experience.”
Posner: “That’s Loving. Tradition. Hundreds of years no interracial marriage. They would make the same arguments you would make: ‘It’s tradition. We don’t want to change it because we don’t know what would happen, right, changing tradition, that’s terrible.‘ What if men stopped shaking hands? That’d be the end of the nation, right?”

Samuelson had no response, the judges moved into further questioning about substantive due process and the question of whether the legislature or the Constitution governs individual rights. When pressed about his claim that the courts have no business reviewing the decisions of the democratically elected legislature about marriage, Samuelson invoked the specter of Edmund Burke to again try to justify tradition as a basis for continuing unequal treatment.

Posner: “What would be an example of a statute passed by a democratically elected legislature that you would consider unconstitutional?”
Samuelson: “If Wisconsin passed a statute or a constitutional amendment forbidding interracial marriage, that would clearly be unconstitutional.”
Posner: “Why? It would be the democratic choice of the people of Wisconsin.”
Samuelson: “Well, at the very least, because Loving says so.”
Posner: “… You argue that democracy insulates legislation from constitutional invalidation. Now you have to have something better… You accept Loving as governing precedent, why isn’t this case rather similar? People want to get married, and you don’t seem to have any reasons… What concrete factual arguments do you have against homosexual marriage?”
Samuelson: “Well, we have the Burkean argument, that it’s reasonable and rational to proceed slowly.”
Posner: “That’s the tradition argument. It’s feeble! Look, they could have trotted out Edmund Burke in the Loving case. What’s the difference? There was a tradition of not allowing black and whites, and, actually, other interracial couples from marrying. It was a tradition. It got swept aside. Why is this tradition better?”
Samuelson: “The tradition is based on experience. And it’s the tradition of western culture.”
Posner: “What experience! It’s based on hate, isn’t it?”
Samuelson: No, not at all, your honor.
Posner: “No? You don’t think there’s a history of rather savage discrimination against homosexuals in the United States and the rest of the world?”

Ouch. The whole thing is pretty brutal. Listen here. Hat tip to Slate and Josh Blackman.

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Daniel Bier

Daniel Bier

Daniel Bier is the executive editor of The Skeptical Libertarian.

View all posts by Daniel Bier

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