According to Chrisian News Network:
[Judge] Posner frequently steered the argument toward homosexual adoption,
arguing that states should allow homosexuals to adopt, and that if they
foster or adopt children, then they should be allowed to “marry” for the
“Come on!” Posner exclaimed. “What’s the offsetting benefit to harm kids? Who’s helped?”
I have listened to the oral arguments in their entirety. Indiana allows gay couples to adopt. Wisconsin allows gay people to adopt as individuals. The net effect is similar because, in both cases, the child ends up being raised by a same-sex couple.
Let’s take Indiana first. The judges asked why, if Indiana allows gays to adopt, it does not allow them to marry. Judge Anne Claire Williams started to drill down on all of the benefits afforded to the child of married parents. There is general agreement on both sides about the benefits of marriage.
What Judge Posner (in fact all three judges) asked is the key public policy question. The harm of banning same-sex marriage is to deny those benefits to children raised by same-sex couples. What, he pressed, is the offsetting benefit to society? In other words, what is the government’s interest in preventing gay people from marrying. Why should those children be disadvantaged?
At one point Judge Posner asked if attorneys representing Indiana subscribed to the beliefs expressed in amicus briefs by Robert George (along with Anderson and Girgis) and Helen Alvare. Those Defenders of the Faith® assert that allowing gays to marry will have an adverse effect on opposite-sex marriage. The attorney said no. I doubt that anyone wants to seriously argue that kind of religious crackpottery before very astute and well educated jurists.
Wisconsin was a slightly different matter. Judge Posner wanted to know what benefit accrued to the state by not allowing gay couples to adopt while allowing gay individuals to do so? Moreover, if the state only permits married couples to adopt as couples then what is the benefit to the state of prohibiting gay people from marrying. The same-sex marriage ban harms children. What is the offsetting benefit to the state?
According to the University of Chicago, following his graduation from Harvard Law School, Judge Posner
clerked for Justice William J. Brennan Jr. From 1963 to 1965, he was
assistant to Commissioner Philip Elman of the Federal Trade Commission.
For the next two years he was assistant to the solicitor general of
the United States. Prior to going to Stanford Law School in 1968 as
Associate Professor, Judge Posner served as general counsel of the
President’s Task Force on Communications Policy. He first came to the
University of Chicago Law School in 1969, and was Lee and Brena Freeman
Professor of Law prior to his appointment in 1981 as a judge of the
U.S. Court of Appeals for the Seventh Circuit. He was the chief judge
of the court from 1993 to 2000.