“Totally Implausible”

After last week’s oral arguments in the Seventh Circuit, yesterday’s unanimous opinion striking down Indiana’s ban on same-sex marriage was hardly unexpected. That doesn’t mean it wasn’t sweet.

Some of my favorite language from the opinion, written by (conservative) Judge Posner:

Our pair of cases is rich in detail but ultimately straightforward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and 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.

The state elaborates its argument from the wonders of tradition by asserting, again in its opening brief, that “thousands of years of collective experience has [sic] established traditional marriage, between one man and one woman, as optimal for the family, society, and civilization.” No evidence in support of the claim of optimality is offered, and there is no acknowledgment that a number of countries permit polygamy—Syria, Yemen, Iraq, Iran, Egypt, Sudan, Morocco, and Algeria—and that it flourishes in many African countries that do not actually authorize it, as well as in parts of Utah. (Indeed it’s been said that “polygyny, where-by a man can have multiple wives, is the marriage form found in more places and at more times than any other.” Stephanie Coontz, Marriage, a History: How Love Conquered Marriage 10 (2006).) But suppose the assertion is correct. How does that bear on same-sex marriage? Does Wisconsin want to push homosexuals to marry persons of the opposite sex because opposite-sex marriage is “optimal”? Does it think that allowing same-sex marriage will cause heterosexuals to convert to homosexuality? Efforts to convert homosexuals to heterosexuality have been a bust; is the opposite conversion more feasible?


To return to where we started in this opinion, 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.


This isn’t the end of the road, but Indiana is closer to joining the 21st Century–and closer to becoming a state able to attract people of good will, gay or straight.


  1. That the 7th Circuit Court upheld the lower court decision that the Indiana ban on same-sex marriage is unconstitutional but did NOT overturn the stay, appears to be a hollow victory at this time. I Googled info and found the local Fox News post at 6:51 yesterday evening which quoted Beth White and Pence; this further points to my rant about the importance of this upcoming November election. Beth White is running for Secretary of State; this would be a great start at cleaning house in this state. She supports the rights of gays to marry and performed many of those legal marriage ceremonies over the brief 2 1/2 day window of opportunity given the gay community. Pence, of course, spoke loud and clear in upholding the unconstitutional ban as being within the state’s rights. The arguments given by the state of Indiana supporting the unconstitutional ban must have sounded even sillier when spoken in court than they appear in the written word. They had no ethical, logical or legal reasoning behind their efforts, only that “this is the way it has always been done” added to “they can’t have children”. Proving they are against progress in this issue as we have seen in their anti-women campaign on so many levels. November is creeping closer, our opportunity to begin moving Indiana in a forward direction will quickly come and go – use the opportunity to return this state to intelligent, thinking leadership.

  2. I hate to shock anyone, but many (and perhaps MOST) gay people do NOT WANT CHILDREN. They are still important too. Just like many hetero childless couples, they can greatly benefit from the hundreds of built in Marriage benefits.

  3. I hope that some day our governments will be able to return to important stuff rather than diversions created by those who benefit from having we, the people and our government chasing goblins.

  4. One of the comments above suggested the need for Indiana …’return to intelligent leadership’. That would presume that at some point there did indeed exist such leadership. That is unlikely .


  5. In order to have intelligent leaders we mush have intelligent followers. The chicken and the egg.

  6. I wonder if polygamy would be legal if a woman could have more than one husband? I mean, if it’s legal for a man to have multiple wives, what about the other way around?

    And if marriage was only about procreation, then they wouldn’t allow people like me, past child bearing age to marry right? What about those adorable 80 yr olds that marry in nursing homes? Surely, that’s illegal in the right wing echo chamber.

  7. I would be interested in seeing a summary of the actual costs of the appeal, including legal fees to the lucky law firms that participated. Ooops, that would make someone accountable and that never happens in Indiana.

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