It took 9 days for Judge Richard Posner to write his unanimous opinion striking down the marriage equality bans in Indiana and Wisconsin. And you can see the tone of the decision in one of its more pointed sentences:
Our pair of cases is rich in detail but ultimately straight-forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously.
It wasn't long ago that marriage equality cases were achingly long affairs. Judges would have to pay homage to the deeply held opinions on both sides and recognize that many people vehemently disagree. But to Judge Posner, the cases are straight-forward.
It also wasn't long ago that we were debating whether being gay is an immutable characteristic. Even our progressive allies were not staking out ground on this subject, instead deciding cases without entering the minefield of heightened scrutiny. To Judge Posner, it's a throwaway line.
And it wasn't long ago that conservatives were making the "promiscuous heterosexual" argument to any judge who would listen. To Judge Posner, it doesn't pass the laugh test.
We expected a win at the Seventh Circuit. My colleague and distinguished law professor Dale Carpenter had a similar perspective. But few could have imagined the grand slam Judge Posner penned over the last few days.
A brief summary and analysis follows AFTER THE JUMP...