Indiana and Wisconsin officials found themselves on the defensive at the U.S. 7th Circuit Court of Appeals on Tuesday as they advocated for bans on same-sex marriage.
Moments after he began his oral argument, Indiana Solicitor General Thomas M. Fisher was interrupted by Judge Richard Posner, who pressed Fisher on his contention that Indiana's ban on gay marriage stems from "governmental concern" over the birth of unintended children.
Posner noted that many of these children were born to unmarried women and adopted by same-sex parents. Why, he asked, should those children not have married parents and all of the benefits such families enjoy?
"Which do you think is better for the psychological health, for the welfare of this child: to have the married same-sex parents or the unmarried?" Posner asked.
Fisher said he didn't "feel like it's my job to answer."
"It's a matter of indifference to you," Posner retorted.
That's how the 90 minutes of oral argument went in the packed courtroom.
Indiana and Wisconsin are appealing federal court decisions that found their bans unconstitutional. On Tuesday, their attorneys focused on the states' needs to regulate marriage as an institution, one linked directly to the ability to have children.
The three-judge appellate panel hearing the case will rule later. So far, appellate courts in the 10th and 4th circuits have rejected state bans in Virginia, Utah and Oklahoma. The U.S. Supreme Court is expected to resolve the issue. Gay marriage is legal in 19 states and the District of Columbia.
Fisher, along with Wisconsin Assistant Atty. Gen. Timothy C. Samuelson, spent most of the morning on the defensive as Posner and Judges David Hamilton and Ann Williams pushed for answers about why same-sex couples should be treated differently from heterosexual couples and what harm lifting the state bans would do.
Fisher noted his concern about linking parental rights to marriage rights. "If marriage rights follow parental rights, we are looking at plural marriages," he said.
Later, the judges asked plaintiffs' attorneys how they would define marriage and what limitations could be put on it.
Camilla Taylor, Lambda Legal's national marriage project director, was pushed by Williams — an appointee of President Clinton — on whether polygamy would become legal.
"That is a big position your opponents take," Williams said. "In terms of what are the limits, in terms of how you define marriage, what are the boundaries?"
When Taylor said the state would have to change laws to accommodate polygamy, Hamilton, who was appointed by President Obama, said that "the argument against polygamy sounds an awful lot like the arguments against gay marriage."
Williams pressed Fisher on whether his "fundamental problem" was that gay marriage is a transgression against social norms.
Fisher said no.
"Men and women make babies and same-sex couples do not," he said. "And we have to have a mechanism for dealing with those babies, and marriage is that mechanism."
Samuelson repeatedly used the word "tradition," leading the judges to ask what he meant.
"Tradition is based on experience," Samuelson said.
Posner called the argument "feeble."
"What if men stopped shaking hands?" Posner asked with slight sarcasm. "Right. It's the end of the nation."
Later, when Samuelson again linked tradition to experience, Posner said, "It's based on hate.... You don't think there is a history of rather savage discrimination against homosexuals in the states and the world?"
Posner, joined by Williams, repeatedly asked what the harm was in allowing same-sex couples to marry.
At one point, Samuelson said he did not know whether there was harm, and at another he cited a need to take a "reasonable, prudent response" to changing social norms.
Hamilton asked Samuelson to reflect on the notion that marriage is a way to promote childbirth and to keep couples together. He quoted statistics highlighting the increasing number of births to single mothers in Indiana and Wisconsin.
"I assume you're familiar with how that's been working out in practice over the past 25 or 30 years," the judge said.
Mike Dean, an attorney for Wisconsin Family Action, said he came away from oral arguments thinking the court was uninterested in hearing the group's rationale that a child should be raised with a mother and a father.
"Does a law exist to make people feel better?" Dean asked. "That is their choice, but to go and say that therefore society as a whole must agree that relationship is the same as a heterosexual marriage, that is a step that cannot be taken."
One of the Indiana plaintiffs, Amy Sandler, is raising two children with her spouse, Niki Quasney. "I'm hopeful," Sandler said. "I felt it was moving in the direction of the rest of the country."
Sandler and Quasney wed in Massachusetts a year ago, and their marriage is the only gay marriage Indiana recognizes. The federal appeals court issued an emergency ruling ordering the state to recognize it because Quasney is battling Stage 4 ovarian cancer.
Sandler reflected on how the ban had affected their lives. She gave birth to their second daughter in 2013 in Chicago, driving about 20 miles in a snowstorm the day she went into labor because Indiana would not put Quasney's name on the birth certificate, she said.
And in the last five years, as Quasney has fought her cancer, she has twice driven herself to Chicago emergency rooms because the closest Indiana hospital would not recognize them as married and grant Sandler the same rights as a heterosexual spouse.
The accommodations they must make to be treated as a couple prompted them to join the lawsuit, Sandler said.
"It takes away from our quality of life with our family. It takes away time from our children," Sandler said. "Every minute Niki and I get to spend together, every minute Niki gets to spend with our children.... Every minute counts."