Ari Ezra Waldman | Gay Marriage | Indiana | Law - Gay, LGBT | News | Wisconsin

Anti-Equality Forces Get 'the Posner Treatment' at Seventh Circuit Hearing

BY ARI EZRA WALDMAN

Posner, Richard 08-10By now you have heard that the attorneys representing Indiana and Wisconsin got a shellacking from the famous Reagan-appointee, Judge Richard Posner. Sean brought us 7 classic outtakes from Judge Posner's questioning, but even those barely scratch the surface of what it must have been like. As someone who has had the privilege (and dread) of arguing before Judge Posner, as well as admiring him from afar, quoting his work, and disagreeing with some of his scholarship, I can say that this is just Posner being Posner. A brilliant scholar with strong views who's been around a long time, he does not suffer fools, whether those fools are seeking millions of dollars in damages or challenging the constitutionality of a ban on gays marrying. Do not think Judge Posner's obvious frustration with the anti-equality attorneys is evidence of a particular love of marriage equality, something he still calls "homosexual marriage," after all. This is how he would approach anyone who comes to him with a stupid argument.

And that is the greatest take away from the Seventh Circuit marriage equality hearings: the arguments against us are just stupid, and everyone appears to get that.

Let's start with Judge Posner, who seemed to relish the opportunity to inject some sanity into Wisconsin's and Indiana's arguments. He repeatedly said things like, "So you don't have an answer to that?" or "How can you brief it if you don't know anything about it," in response to Wisconsin's inability to support its arguments that heterosexuals would stop marrying if gays could, or "You don't seem to have any reasons" for banning gays from marrying, or, as Sean noted yesterday, "You don't have any sort of empirical or even conjectural basis for your law." Judge Posner followed that one with a little snark: "Funny." Mic drop.

CONTINUED, AFTER THE JUMP...

But Judge Posner was not doing anything other than what we have been saying for some time. He just did it with a little more flair. It is ridiculous to say that when gays are allowed to marry, fewer heterosexuals will marry. It is nonsense to say that banning gays from marrying actually encourages opposite-sex couples to have more sex after marriage, thus increasingly the likelihood of having children within marriage. It is shocking that states would ostensibly want to keep children of gay couples in a state of legal and financial uncertainty, a point Judge Posner cited from the wonderful brief of the Family Equality Council.

We have made these arguments before. Attorneys have made these arguments in almost every marriage equality case since the decade-old state litigation in Massachusetts (and even older litigation in Vermont). Judge Posner was obviously aware of this nonsense and could not stand it any longer.

Ac_williamsIf Judge Posner was the hearing's headliner, his colleagues, Ann Claire Williams and David Hamilton, were not merely the background voices. They were stars on their own.

Judge Williams saw an opening during one of Judge Posner's carpetbombing campaigns to rescue Indiana's Thomas Fisher, saying, "I don't think counsel is going to be answering your questions." But then reminded Mr. Fisher that his arguments about children are far south of sensible: the gay couples he wants to discriminate against, she noted, are the ones who affirmatively want to have children. By basing its ban on the future possibility of promiscuous heterosexuals having an accidental child, Indiana was privileging a hypothetical future child whose parents didn't actually intend to have kids over a child whose parents dutifully planned to raise her in a loving home.

HamiltonBut it was the relatively unemotional Judge Hamilton, President Obama's first judicial appointee and the subject of a loud Republican Senate filibuster, who showed how far marriage equality has come in the federal judiciary. Almost as an afterthought, Judge Hamilton noted that, "It seems to me that we’re in the realm of heightened scrutiny based on sex discrimination." Though it may have been a throwaway line to him, and it barely got any traction in the grand scheme of a Posner-dominated oral argument, it is a remarkable line. The sex discrimination argument -- which holds that banning gays from marrying discriminates on the basis of sex because a man can marry a woman, but because he's a man, he cannot marry a man -- has not received the kind of traction many marriage equality had advocates had hoped when they first made those arguments 20-plus years ago. What's more, the notion of heightened scrutiny as accepted as a fact in antigay discrimination cases is a monumental step forward from where we were when the Supreme Court decided Windsor.

Expect a 3-0 proequality decision from this bench in record time. Judge Posner, the senior judge on the panel, will likely write it and his opinion turnaround time is close to the top of all federal appellate judges.

The expected decision demands that we ask the question again: Do we even need the Supreme Court. Stay tuned for my next post on that.

***

Follow me on Twitter and on Facebook. Check out my website at www.ariewaldman.com.

Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently pursuing his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

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Comments

  1. Thank you, Ari, for a lucid and concise analysis as you always give us. Heightened scrutiny is the grand prize. Marriage equality is equality for getting married but nothing else. Heightened scrutiny is equality in all government actions: jobs, services, benefits, everything.

    Posted by: nolaramie | Aug 28, 2014 10:49:05 AM


  2. Everyone should listen to the audio of the court hearings.
    Sublime.

    Posted by: Mike in nyc | Aug 28, 2014 11:07:46 AM


  3. Perhaps he is a real judge - neither Republican or Democrat thinking in his deliberations. That's refreshing.

    Posted by: Mike in the Tundra | Aug 28, 2014 11:13:20 AM


  4. And after listening to the 7th circuit hearings, they should go back and listen to the 6th circuit hearings. The respect to the states' absurd positions shown by Judges Sutton and Cook was striking even then but is all the more so in contrast to the 7th Circuit.

    Sutton, who like Posner has a reputation as a judicial intellectual, should be ashamed.

    Posted by: Mark Peterson | Aug 28, 2014 11:13:35 AM


  5. Ginsburg said recently that the Supreme Court will not duck the issue when the next marriage case reaches them. It seem unlikely they will not get involved.
    So, with the withering criticisms from Judge Posner, what can possibly be the argument in the dissent from Alito, Roberts, Scalia, and Thomas?

    Posted by: sjorgl | Aug 28, 2014 11:23:47 AM


  6. By issuing these now-automatic stays, SCOTUS cannot possibly NOT hear the cases.

    Scalia and the gang will invoke some form of "states' rights" that this isn't something (unlike, say, inter-racial marriage) that can be "compelled" by them.

    Posted by: Jackster | Aug 28, 2014 11:36:31 AM


  7. Thank you as usual to Towleroad for providing the audio of the oral arguments. The 7th Circuit audio was the most withering yet. The states' attorneys had no lucid arguments, no evidence, and nothing to point to justify these laws. The judges were presenting THEM with evidence refuting their arguments. Pretty incredible.

    Posted by: Bill Begert | Aug 28, 2014 11:43:20 AM


  8. I still suspect SCOTUS will take a pass on the marriage cases unless and until there is a split in the circuits. To date, the circuits that have ruled have struck down the bans. If a circuit rules that the bans are in fact Constitutional, then SCOTUS actually has a case or controversy to resolve. In the absence of this, my suspicion is silence from SCOTUS for at least another year.

    The conservative wing will vote no a Petition for Cert because they lack five votes right now, and would rather wait for Ginsburg to pass.

    The liberal wing may vote no on cert as well, because they prefer to see an overwhelming number of circuits already state that its unconstitutional before weighing in.

    I suspect only Kennedy will vote in favor of cert just to be done with it.

    It takes four votes for a cert petition to be granted.

    Posted by: DC Insider | Aug 28, 2014 11:53:33 AM


  9. I relished Judge Posner's painstaking vivisection of the states' attorneys, but he did seem rather dense on the subject of heightened scrutiny, and, alas, I don't think the ACLU attorney, Mr. Esseks, explained the very lopsided standard of evidence under rational basis review that favors the state. The problem with Judge Posner's theory of review—wherein the court simply weighs the harms of a law against its benefits—is that the state can offer—and the court must accept—purely speculative harms or benefits that favor the state's position, and thus tip the scales in its favor without having to come up with any actual facts or evidence. Indeed, Judge Randy Smith, in his dissent in the Prop 8 appeal, argued that courts must accept even a demonstrably irrational speculation as long as the legislature (or voters) *believed* it to be rational when they enacted the law. Judge Posner might personally require a stricter standard of evidence—he asks Esseks what if the state could "show" the benefits of the ban—but a higher appellate panel (en banc or SCOTUS) would overturn that standard because it's not the legal standard that SCOTUS has set forth for Equal Protection analysis. Actually, I suspect Judge Posner does apply the accepted rational basis standard because he repeatedly and doggedly presses the states' lawyers to _speculate_ on what harm would come of striking down their marriage bans.

    Posted by: JJ | Aug 28, 2014 11:58:09 AM


  10. The argument was great, but it's never certain to predict results based on oral argument, Still, good chance this could be 3-0 for us.

    However, be careful about getting too enamored about Judge Posner. His opinions tend to be written in non-legalese, informal sentences, with common sense and not a lot of legal citations, and also some degree of flippancy. What this means is that even though he is well respected as a conservative intellectual, if he writes an opinion it might not receive the same "praise" and "deference" as if it was written in a more scholarly way by another conservative intellectual. So, there is some danger if he becomes the writer. On the other hand, if he us the writer -- or even votes with the other two judges -- to strike down the marriage bans, it is definitely going to carry weight with Justice Kennedy, and maybe even Chief Justice Roberts (forget Scalia, Thomas and Alito). And we all know that the marriage issue is going to be decided by only one person in the entire US: Justice Kennedy.

    Also, I think not enough focus is being put on the 6th Circuit case that was argued in Cincinnati and involved laws from KY, TN, MI and OH. It's a wild card, and it's probably going to be 2-1, but which way? In the opinion of many, what Judge Sutton does in that case may have more impact on the Supreme Court than what Judge Posner does in the 7th Circuit case. This is because Judge Sutton is extremely conservative, and he's the one who will probably be the swing vote. One glimmer of hope for his vote is that he was the only Republican appellate judge to uphold Obamacare (before the Supreme Court decision), so clearly he doesn't get trapped 100% of the time by his conservative Republican leanings and so there is hope that he might vote to strike down the bans. He gave very little evidence of his position (unlike Posner) during the arguments. If we win in the 6th Circuit by getting Sutton's vote, that will be much more persuasive with conservatives than what Posner does. This adds to the fact that several judges who have struck the ban at the district court level (in MI, PA, KY, UT, etc) are also Republicans is a good factor in giving Sutton some "comfort" in voting to reject the bans.

    Posted by: MiddleoftheRoader | Aug 28, 2014 12:01:46 PM


  11. I can say that as someone who has read bits and pieces of Judge posner's books, this did not surprise me at all.

    Posted by: Chitown Kev | Aug 28, 2014 12:05:39 PM


  12. Also excellent points posted above by @JJ.

    It's a crap shoot whether a marriage ban passes the rational basis test. Read the dissents in the 10th Circuit and 4th Circuit, which is what at least 4 Supreme Court Justices will say. And Justice Kennedy -- who knows? He could say the bans are rational, and states have the right to define marriage if there is some rationality to their definition. I don't think the bans are rational, but it would be easy for Justice Kennedy to accept the dissents in the 10th & 4th Circuit cases if he is so inclined.

    This means that the issue of "heightened scrutiny" is very important. Because if 5 Supreme Court Justices view the bans as rational, then those same 5 must also be willing to uphold the bans under "heightened scrutiny" -- where they will fail. So again it comes down to Justice Kennedy. Will he accept "heightened scrutiny"?

    ONE VERY IMPORTANT POINT THAT KEEPS GETTING IGNORED IN MOST OF THESE NEWS STORIES AND BLOGS -- there is a very different standard that applies if a state is trying to ban recognition of valid out-of-state marriages VS. to ban allowing such marriages to be performed in its own state. @JJ -- the constitutional "right to travel", cited in Shapiro v Thompson and other Supreme Court cases -- requires states to have a very strong reason (NOT JUST A RATIONAL BASIS) if they adopt a law that substantially and adversely affects the free right to travel (and move) between states. It's hard to imagine how a state could have a very strong reason to say that a valid marriage that occurred when two spouses lived in MA or CA suddenly became "invalid" or "not recognized" when they moved to VA or UT. The fact that a state would negate a valid marriage has a huge negative impact on the right to travel and move to another state, and it's hard to see how the non-recognition ban would survive the constitutional test in Shapiro v Thompson.

    So one weird outcome of all of this could be: a state can (rationally) ban same sex marriages from taking place in its state, but a state cannot refuse to recognize valid out-of-state same sex marriages when a married couples travels to/moves to the non-recognition state. Sounds weird? But a possible outcome.

    Posted by: MiddleoftheRoader | Aug 28, 2014 12:15:22 PM


  13. Interesting how neither state resorted to the regnerus study. Guess the opponents have finally given up on it.

    Posted by: woody | Aug 28, 2014 12:17:27 PM


  14. Scalia will again argue that it's a "new right" that is not specifically stated in the constitution. That's his one-liner that he keep droning on...

    Posted by: woody | Aug 28, 2014 12:21:02 PM


  15. Actually, the ninth posited a type of review between rational basis and strict scrutiny, and in practice there's been "levels" even within those two categories. Scalia is on record of saying that scrutiny has no basis in constitutional law, either something is constitutional or it is not, and this is the perfect case for him to bring this all up again. The problem is that there's no apparent empirical basis to ban gay marriage for conservatives to point to, so even a rational basis test would fail, but those that set up these levels of scrutiny say that such a test must be applied if the group in question is not one of the protected classes (race, gender, politics or creed). Thus, the states can't simply argue states' rights, and must come up with a rational basis test--which always looks ridiculous in cross. You don't actually have to work that hard to shoot them down. Posner is basically saying the RBT is going to be entirely stupid if that's all you got--and he's right.

    Posted by: anon | Aug 28, 2014 12:29:02 PM


  16. Thanks not only to Ari for his thoughts on yesterday's arguments but for all these thoughtful and informative comments. Much appreciated.

    Posted by: Robert | Aug 28, 2014 12:47:02 PM


  17. To state in court you haven't a clue as to why your argument is correct is up there with telling the judge you don't need any evidence.

    Posted by: Michael | Aug 28, 2014 12:49:55 PM


  18. Agree with Robert, thank you for all these insightful comments and analyses.

    Posted by: Hawthorne | Aug 28, 2014 1:23:30 PM


  19. @Woody,

    I find my right to marry the person I love in the 9th Amendment. The 9th is the scariest amendment to conservatives, as it destroys their facade that the Constitution must state what rights everyone has.

    Posted by: Phoenix Justice | Aug 28, 2014 1:37:55 PM


  20. We need the Supreme Court to lift the stays it has in place. Without that....

    Posted by: Will | Aug 28, 2014 1:46:43 PM


  21. The Supremes may allow marriage equality as long as Catholics are not told about the decision. That way Catholics can continue to think they are special. And the Catholics on the Court won't have to be condemned from the pulpit next Easter. The art of compromise. Win win.

    Posted by: james street james | Aug 28, 2014 2:15:31 PM


  22. In cases like these there is only one reason we need the Supreme Court. The states will request a stay and the Supreme Court will grant one. And so the decision will be stayed until the court either grants cert and rules or denies cert. Either way the Supreme Court is needed simply because the case will remain in limbo until they do SOMETHING.

    It does seem to me that if SCOTUS had no intention of granting cert on at least SOME marriage equality case they would not be nearly so enthusiastic about staying lower-court decisions.

    Posted by: sfbob | Aug 28, 2014 4:48:17 PM


  23. "Do we even need the Supreme Court."

    Well, there is a circuit split. The 8th Circuit's pre-Windsor decision went against marriage equality. And the 6th Circuit looks likely to go against us.

    Posted by: Randy | Aug 28, 2014 5:27:49 PM


  24. "(...) something he still calls 'homosexual' marriage,' after all."

    This site previously headlined the following on Posner:

    "7 Moments That Will Make You Want To Gay Marry Judge Richard Posner: PHOTOS."

    If you have a problem with Posner calling it "homosexual marriage", don't you think using the term "gay marry" is little hypocritical? It's stuff like this that refrain me, a professional journalist, from wanting to work for Towleroad.

    Posted by: H.J. | Aug 28, 2014 6:25:17 PM


  25. "It's stuff like this that refrain me, a professional journalist, from wanting to work for Towleroad."

    Not to mention a poor mastery of intransitive verbs, uncountable nouns, and subject-verb agreement.

    Posted by: JJ | Aug 28, 2014 9:39:05 PM


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