Marriage equality gets another hearing before another federal appellate court this morning. Before an as-yet-to-be-named three-judge panel of the Chicago-based Seventh Circuit Court of Appeals, gay and lesbian couples in Indiana and Wisconsin will argue that, as the district courts stated below, the states' bans on gay marriage are unconstitutional. The states' two Republican administrations will argue that gays and lesbians should not be included in the fundamental right to marry and that it is the states' best interest to ban gays from marrying. These arguments are tired, old, and have been rejected many times.
But although the weight of legal arguments and a string of legal victories are on our side, the Seventh Circuit poses an uncertain challenge for several reasons.
First, the panel. We will not know the panel until just a short time before oral argument begins. In previous previews of marriage equality cases before appellate courts, we were able to discuss the political leanings of the judges. We discussed that in the Fourth Circuit and in the Sixth Circuit. And although political affiliation is not always a perfect indication of how a judge will decide a ruling, the knowledge informs us. As a former appellate attorney, I made sure that at least part of my legal strategy reflected the decision histories and tendencies of the judges on the panel. I could never do that in the Seventh Circuit outside of a few on the fly preparations before oral argument.
We do know that 10 of the 14 judges (including senior judges with a lighter case load) on the Seventh Circuit were appointed by Republican presidents. But we also know that (a) many Republican judges have written eloquent marriage equality decisions and (b) some of the Republican-appointed judges on the Seventh Circuit defy traditional conservatism. The famous Judge Richard Posner, for example, is a scion of the law and economics movement and he does not necessarily toe a socially conservative line. For example, Judge Posner has been sympathetic to the pro-choice movement.
We also know that Judge Diane Wood, a Clinton-appointee and liberal scholar, is now the chief judge, but that does not necessarily matter for panel assignments. The Seventh Circuit's staff executive determines panels using a very simple matrix of 3 judge combinations. Judges learn their panels weeks, if not months in advance; we hear about it the day of.
Second, the arguments. Indiana's central argument is that banning gays from marrying is in the best interest of the state because the state needs to encourage opposite-sex couples to marry and have children within the marital relationship. We've heard that argument before and it is simply laughable. There is no way that banning one group from marrying actually encourages a totally different group to not just marry but also to have kids while married. Plus, gay couples have children, too. I cannot imagine judges like Posner and Frank Easterbook, another law and economics scholar, seeing any legitimacy to the supposed "incentive" for heterosexuals to marry in Indiana's argument.
Third, the history. We won more than 30 cases in a row after the Supreme Court's decision in Windsor. Remarkably, we lost one in Tennessee just two weeks ago, a decision I will write about presently. But the Seventh Circuit is looking at the cases before it in the context of a federal judiciary that, so far, has been overwhelmingly favorable to marriage equality. The judges will see it below them — in the many district court decisions overturning bans in states across the country — and above them — in the Supreme Court's decision in United States v. Windsor. It is hard to see the appellate panel ignoring this context. Neither Judge Posner nor Judge Easterbrook, nor, for that matter, any of the senior judges, are likely to want to be remembered for going against the full weight of an unstoppable tide toward marriage equality in the federal courts.
We will know more once we hear the panels.
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.