7th Circuit Hears Challenges To Same-Sex Marriage Bans in Indiana and Wisconsin: LISTEN


The 7th Circuit Court of Appeals today heard oral arguments in two cases that challenged the constitutionality of same-sex marriage bans in Indiana and Wisconsin, respectively. As the AP reports, the three judge panel composed of Judges Richard Posner, Anne Claire Williams and David Hamilton, were critical of arguments that sought to justify the bans. Judge Posner, the sole Republican appointed judge among the three member panel, was perhaps the most critical of the states defending their anti-equality laws, objecting in particular to arguments that relied on "tradition":

"It was tradition to not allow blacks and whites to marry — a tradition that got swept away," Posner said. Prohibition of same sex marriage, he said, is "a tradition of hate … and savage discrimination."

Posner frequently cut off Indiana Solicitor General Thomas Fischer, just moments into his presentation and chided him to answer his questions.

At one point, Posner ran through a list of psychological strains of unmarried same-sex couples, including having to struggle to grasp why their schoolmates' parents were married and theirs weren't.

"What horrible stuff," Posner said. What benefits to society in barring gay marriage, he asked, "outweighs that kind of damage to children?"

There was [also] some levity during the hearing. As Samuelson struggled to offer a specific reason for how gay marriage bans benefit society, he suddenly noted a yellow courtroom light signaling his allotted time was up.

"It won't save you," [Judge Ann Claire] Williams told him, prompting laughter in court.

Samuleson smiled, and said: "it was worth a try.”

The last anecdote indicates somewhat dramatically just how much the court may be inclined to disagree with the state’s arguments and find for the plaintiffs. 

Listen to oral arguments in both the Indiana (Baskin v. Zoeller) and Wisconsin case (Wolf v. Walker), AFTER THE JUMP…

(photo via Twitter)


  1. oncemorewithfeeling says

    I wonder how many people the states could house, clothe and feed with the money they are knowingly throwing away on trying to make sure they can hurt their own citizens in other ways in addition to not being housed, clothed and fed.

  2. Malcolm says

    If Posner’s posture during oral arguments is reflective of his decision, I want him to write the opinion of the Court.

  3. Randy says

    Most entertaining part of WvW:
    21:15 “You have all these incestuous cousins running around Wisconsin I don’t get it. You don’t worry about that… but you’re terribly worried about homosexual marriage. “

  4. MiddleoftheRoader says

    This is going to be a win for same sex marriage. I’ve listened to both arguments in full, and although you can’t predict with 100% certainty, it’s pretty darn close.

    Posner is the “thinking person’s conservative”. If he strikes down the bans, it will definitely help with Justice Kennedy and maybe even Chief Justice Roberts. The problem with Posner writing the decision (if you have read many of his other decisions) is that he tends to be brief, common-sense and even flippant, and he’s not always strong on citing lots of legal precedent. Also, Posner — and even Judge Williams — seem to want to decide the case solely on “rational basis” under the Equal Protection Clause, and they don’t seem to be be interested at all in “heightened scrutiny” under the Equal Protection Clause (because sexual orientation is a protected class)or “heightened scrutiny” because marriage is a “fundamental right” under the Due Process Clause.

    Particularly as Posner said, in words like these, “why do we need to get into all that other mess if there’s no good reason for it?”. That’s the beauty — AND THE WEAKNESS — of Posner. He may take a simple way out, and if the Supreme Court disagrees with his simple way out, then …… we may need to succeed on the “heightened scrutiny” / “fundamental right” legal analysis, and Posner doesn’t seem to want to go that far at least at this point.

  5. Rick says

    Hopefully this will lead to a happy day for the very tiny percentage of gay people who form committed relationships and who, by doing so, seek to be a part of the social mainstream.

    Neither the Courts nor society in general have put their stamp of approval on the kind of shiftless, dysbunctional, self-destructive, socially marginal lives led by effeminate, “gender-non-conforming” individuals, whose severe emotional damage prevents them from having anything resembling a loving relationship with another male human being….and who will therefore, of course, never even be in a position to contemplate marrying someone.

    Men who hate men and all things masculine are incapable of loving another man or attaching themselves to one for any length of time.

    But for those handful of individuals who do behave responsibly and deserve to be accepted into the social mainstream, this is, indeed, a happy day…..

  6. simon says

    Are you saying you are a family man? My condolence to your husband if that’s the case.

  7. simon says

    Judge Posner seems not convinced that there is a rational basis for the ban. It is kind of weird if he will rule otherwise.

  8. Zlick says

    I think listening to the Wisconsin lawyer squirm was my favorite part of the entire, highly enjoyable hearings. I’ve heard the empty arguments before, but this one should be the Textbook for Opponents of Same-Sex Marriage Have NOTHING.

    Judge Posner was the star, of course. Brilliantly funny and barbed and logical. Love him. Want to send him a case of wine!

  9. Bernie says

    I am definitely feeling good and positive with the judges’ reactions and statements to these tired, worn out, illogical, irrational and nonsensical statements made against marriage equality…….

  10. .45 or .38 says

    I doubt that Rick could convince even his 65-year old sister to marry him in Indiana.

    There’s a cure for your strain of mental illness, Rick. It’s called a bullet.

  11. Tony C says

    After listening to both arguments, I think this may be the first Unanimous circuit court decision (since windsor, anyway)upholding the courts below. The one question I wish Posner would have asked the attorneys representing the state, and keep pressing them for an answer, is “how the heck does banning gay couples form marrying, advance the legislature’s supposed goal of enticing unwed straights who have accidental children, how do these bans advance that goal?” Every lawyer for the state would be stuttering to answer that question. I also love when Judge Hamilton pointed out in open court that that, i believe it was Wisconsin’s argument was “reverse engineered” specifically to fit their anti equality stance. Between this and the Florida district court pointing out that marriage equality is NOT a zero sum concept, I can’t see how Kennedy, and perhaps even Roberts could continue to argue to uphold these bans. These bans are purely and simply based on moral disapproval, and any other argument is blatantly pretext. I also loved how judge Posner wouldn’t buy Justice Alito’s “oooh but we have to be careful, ’cause something, we have no idea what, but something bad could happen’. Posner wasn’t buying it, wasn’t having anything to do with it.

  12. Tony C says

    It would be great if this court ruled soon, and ruled unanimously, as I predict they will, upholding the courts below. If they would release their ruling before the 6th and 9th circuits, perhaps a unanimous decision by the 7th would set precedent and influence the 6th and 9th, and who knows, if the 4th, 6th, 7th, and 9th all uphold the courts below, maybe that will influence or at least put a lot of pressure on the 5th circuit.

  13. Tony C says

    The Supremes may decide not to even get involved in hearing a case, if the circuits all up hold the district courts. If they do take up a case, they (the justices in favor of equality and equal protection)may prefer to take up a case that rules against marriage equality and equal protection, to slap that court down. The Supremes seem to prefer to slap down the courts below than uphold their decisions. So if the 5th upholds the Texas ban, perhaps, Ginsburg, Kagan, Sotomoayor, Breyer and Kennedy will take that case and rightly slap down the 5th. That would be GREAT!

  14. ben~andy says

    Kennedy would probably like to remind Texas that the guy who wrote the Lawrence v. Texas ruling [sodomy anyone?] is still on the bench and perfectly happy to harsh their buzz.

    I to found these hearings to be amazingly simple and fun to listen to. It helps when right out of the box the conservative judge starts asking “So, justify this law. No, that’s not an answer to my question. Try again. Okay, I guess you don’t have a good answer and don’t know anything but what’s in your own rather crappy brief. Pity. Next.”

  15. johnny says

    Lawyer made a huge mistake when he tried to make it about children. The answers are obvious and his trying to avoid them made him look like an ass.

    Posner was amazing! His entire style was really great, skewering that jerk lawyer on his own answers!