There’s no subtle way to describe a federal appeals court’s reaction to an attorney for the state of Wisconsin’s effort to defend marriage discrimination on Tuesday. It was a bloodbath. Judge Richard Posner, a Reagan appointee to the United States Court of Appeals for the Seventh Circuit, peppered Wisconsin attorney Timothy Samuelson with questions asking him to offer a constitutionally sufficient justification for why his state denies equal marriage rights to gay couples. At one point, when the yellow light signaling that Samuelson was running out of time to make his argument turned out, Judge Ann Claire Williams warned him that the approaching end of his scheduled time at the podium “won’t save you” from a continuing onslaught of questions.
In a particularly tense exchange, Samuelson attempted to defend Wisconsin’s law on the theory that it is rooted in tradition. That tactic did not turn out well for him:
Posner: What concrete factual arguments do you have against homosexual marriage?
Samuelson: Well, we have, uh, 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? [Note: Loving v. Virginia was a 1967 decision striking down bans on interracial marriage] . . . 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: You don’t think there’s a history of rather savage discrimination against homosexuals?
The Supreme Court, it should be noted, has long maintained that appeals to tradition are not sufficient reason to sustain a law absent some other justification. As the Court explained in 1970, “neither the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack.”
The third judge on the panel, Judge David Hamilton, also appeared skeptical of Samuelson’s arguments, at one point saying that the attorney was trying to justify discrimination based on a “reverse engineered theory.”