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Posner-ed at the 7th Circuit: Appellate Court Issues First Unanimous Marriage Equality Decision

BY ARI EZRA WALDMAN

PosnerIt 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...

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Federal Judge Gets It Wrong, Upholds Marriage Discrimination in Louisiana in Strange, Hateful Opinion

BY ARI EZRA WALDMAN

FeldmanLouisiana Federal Judge Martin Feldman, a Reagan appointee, has upheld Louisiana's ban on marriage equality in a haphazard opinion remarkable only for its outdated language and subtly hateful rhetoric. Falling into traps we teach law students to avoid, Judge Feldman finds marriage equality as suspect as fathers marrying their daughters and improperly narrows the scope of the case to seeking a "right to same-sex marriage" rather than just "marriage." He suggests that being gay is a "lifestyle choice" and states that such a "choice" is butting heads with the democratic process, something he seems to think is infallible and beyond reproach.

Judge Feldman gets it wrong. The fight for marriage equality is a fight for marriage, not anything special or different than what opposite-sex couples enjoy. Being gay is not a choice and loving someone of the same sex is not a "lifestyle choice": it is love, it is human nature. And permitting gays to marry does not open the door to incestuous marriages, bestial marriages, or polyamorous unions. That kind of slippery slope argument doesn't pass the laugh test. Countless jurisdictions have made the decision to allow gays to marry, a legal policy decision that has no negative health or cohesion effects on society, without improperly permitting marriages that could be damaging to those involved and to children.

Judge Feldman is not the first judge to uphold a ban. He is not even the first to uphold a ban in the post-Windsor era. He is, however, the first federal judge to uphold the constitutionality of a state ban on marriage equality since Windsor, which complicates marriage's journey through the federal courts. The decision today does not necessarily mean the Supreme Court will have to take one or several marriage equality cases; Judge Feldman could still be overturned by the Fifth Circuit. But it does have several effects:

(1) it makes a circuit split, a key reason the Supreme Court takes cases, more likely;

(2) it provides some measure of legitimacy to anti-equality forces by giving them a victory and resurrecting their outdated and hateful language; and

(3) it denies very real rights to very real families struggling in Louisiana.

I break down some of the more distasteful elements of the decision and provide some context, AFTER THE JUMP...

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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...

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

Posner1

Yesterday, the U.S. 7th Circuit Court of Appeals heard two cases challenging same-sex marriage bans in Indiana and Wisconsin. There was a lot of speculation as to who would be on the three judge panel that would hear the case. Not long before the hearing began, we found out: Judges Ann Claire Williams, David Hamilton and Richard Posner. Williams and Hamilton were Clinton and Obama nominees respectively and were widely thought to be favorable to pro-equality arguments. Judge Posner, a Reagan nominee, was something of a wild-card. Though as our own Ari Ezra Waldman pointed out in his pre-hearing analysis, Judge Posner does not always “toe a socially conservative line,” having “been sympathetic to the pro-choice movement.” However, few could have imagined how incredible Judge Posner’s performance during the hearing would be. And while the 7th Circuit still has to deliver its decision, it is safe to say that Judge Posner has won his way into many a gay’s heart.

Check out Posner’s 7 best quips that defined yesterday’s hearing, AFTER THE JUMP…

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


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

Chi

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)

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


Seventh Circuit Reveals Three Judge Panel To Hear Today's Gay Marriage Case

Judges

As Ari Ezra Waldman reported earlier, today's hearing on marriage equality before the 7th Circuit Court of Appeals hinges in some part at least on the three judges chosen to hear the arguments. Those judges have now been revealed as Judges Richard Posner, Anne Claire Williams and David Hamilton. As ThinkProgress reports, this news seems to portend well for marriage equality advocates: 

Judge Posner is the sole Republican on the panel — he’s served on the Court since President Reagan appointed him in 1981 — but he is a highly idiosyncratic judge who has grown increasingly critical of his fellow partisans in recent years….On the specific issue of gay rights, Posner’s views are a bit nuanced, but he is openly sympathetic to the case for equality. In a 2013 essay entitled “How Gay Marriage Became Legitimate,” Posner questioned the view that the courts have played much of a role in advancing LGBT equality. Using antiquated language, Posner’s bottom line was that “the growing acceptance of homosexual marriage seems a natural consequence of the sexual revolution that began in the 1960s rather than an effect, even to a small degree, of litigation.” Yet he was also dismissive of arguments against gay equality. “[I]t is hard to make a case for discriminating against [gay people],” Posner wrote, “apart from a religious case based largely on Roman Catholic doctrine.”

Judge Williams is a Clinton-appointee and a noted liberal scholar. Hamilton, meanwhile, was appointed by President Obama and was filibustered by Republican Senators “in large part due to a handful of opinions he handed down as a federal district judge on social issues such as abortion and religion.” Early speculation suggests both would be unlikely to break with the dramatic trend of federal justices supporting marriage equality.

Stay tuned for more news on the hearing today before the 7th Circuit.


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