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FRC's Sprigg admits his side put up 'weak defense' in 7th Circuit

by Jeremy Hooper

Everyone on the pro-equality side who has listened to the audio from this week's hearing at the Seventh Circuit Court of Appeals (involving marriage cases out of Indiana and Wisconsin) is extremely pleased with how things went down. Folks are particularly overjoyed with Judge Richard Posner, a Reagan appointee, who beat back the opposition with tough and pointed questions that served to expose their lack of credible arguments. Most court watchers believe it was a good day for the case for equality and a bad day for discrimination.

But those of us on the right side of history are not the only ones who know it was a bad day for discrimination. The Family Research Council's Peter Sprigg, a hostile voice Screen Shot 2014-08-29 At 10.09.16 Am of discrimination if there ever was one, fully admits that the arguments on his side were "weak":

One thing that was disappointing in the oral arguments (in addition to Judge Posner’s vitriolic hostility to natural marriage) was the relatively weak defense offered by attorneys for the states. By focusing narrowly on the issue of accidental procreation (the one public concern that is absolutely unique to opposite-sex relationships), Indiana’s Fisher omitted broader state interests in encouraging procreation in general, and in encouraging the raising of children by both their mother and father. (Indeed, one of Judge Hamilton’s first statements to him was, “I would think that the state’s interest is equal regardless of whether the children are intended or unintended.”).

Assistant Attorney General Timothy Samuelson’s defense of Wisconsin’s law was even more vague, as he drew mockery from the judges for his reliance on “tradition” and “experience” as justifications for the one-man-one-woman definition. He was given little opportunity to develop a more technical argument he proposed regarding the difference between “negative” rights (such as protection from employment discrimination) and “positive” rights (such as access to the legal benefits of marriage). At one point, he said, “We defer to Mr. Fisher’s arguments [in the Indiana case] … [M]arriage provides a mechanism for tying unplanned children to their biological parents.” At another, he referred the judges to Supreme Court Justice Samuel Alito’s dissent in last year’s case striking down the federal definition of marriage (Alito had cited the increase in divorce rates following the adoption of no-fault divorce as an example of how changes in marriage laws can lead to unforeseen negative consequences).

In neither case did the state’s attorneys make assertions as to actual harms that might result from redefining marriage
FRC Blog]

Of course this is a man who has publicly called to both "export" and impose criminal sanctions on gay people. It's not surprising that he'd find anything less than that to be weak.

But this time, the Family Research Council senior fellow does happen to be right. His side put up a very weak defense, as they typically (and increasingly) do. That is because they really have no rational arguments to make, first and foremost, and because the arguments that people like movement leaders like Peter Sprigg typically make in their day-to-day advocacy (in addition to the aforementioned calls for criminalization and deportation, Sprigg, like many in his movement, is a major advocate for "changing" gay people) would lead to an immediate loss for their side. It's a very strange reality on the other side. If they honestly present the kinds of things that they say about us every other day of the year, then they will lose because of the obvious animus, yet if they try to pretend they have a legally grounded case separate from their chosen desire to discriminate, they lose because of the obvious lack of legal merit.

They should probably just call it quits now. Think of all of the homeless they could feed and clothe with the legal bills they'd save.

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