The 7th Circuit is conducting oral arguments today in combined Indiana and Wisconsin cases considering the constitutionality of laws prohibiting same sex marriages. The panel drawn to hear the cases are Judges Posner, Williams, and Hamilton. Posner is a Reagan appointee, Williams is a Clinton appointee, and Hamilton is an Obama appointee. This is not a good draw for the Attorney Generals of the states seeking to have their laws prohibiting same sex marriages upheld.
Posner who, just from a two-dimensional political analysis, might be expected to be the most sympathetic to the marriage laws on the books is not a reliable enthusiast for socially conservative positions. Looking at his Wikipedia page (how is that for legal analysis!) he has expressed opinions sympathetic to abortion rights and skeptical of the drug war. With respect to gay marriage in particular, Judge Posner offered a discussion at his blog with Gary Becker. He believes the available evidence suggests that homosexuality is innate and, as such, “if homosexuality is innate, it becomes difficult to see why it should be thought to require regulation.” He concludes:
It seems that the only remaining basis for opposition to homosexual marriage, or to legal equality between homosexuals and heterosexuals in general, is religious. Many devout Christians, Jews, and Muslims are strongly opposed to homosexual marriage, and to homosexuality more generally. Why they are is unclear. If as appears homosexuality is innate, and therefore natural (and indeed there is homosexuality among animals), and if homosexuals are not an antisocial segment of the population, why should they be thought to be offending against God’s will? Stated differently, why has sex come to play such a large role in the Abrahamic religions? I do not know the answer. But whatever the answer, the United States is not a theocracy and should hesitate to enact laws that serve religious rather than pragmatic secular aims, such as material welfare and national security.
(emphasis added).
I can’t imagine the chances of the State attorneys general gets any better with Judges Williams and Hamilton. Ian Millhiser, writing for Think Progress, says of the panel draw, “Marriage equality supporters just won the lottery.”
I cannot disagree that with Posner’s reductionist Chicago School approach to permissible purposes of the law, marriage redefiners have won the lottery. Further, Supreme Court precedent against morality having anything to do with law (a theory that’s palpable butt biscuits — but I digress) suggests that traditional/natural marriage is in trouble there, too .
Sounds like we’re going to lay another issue decisively to rest, as we did with abortion 41 years ago, by judicial fiat. Swell.
Judicial fiat got us the morally correct, Christian approach to abortion (legalize it). If it gets us the morally correct, Christian approach to marriage (all marriages among consenting adults are fine), great! Outcome is more important than process.
Like abortion, public opinion, even in our benighted state, favors same sex marriage. In fact, in the latest surveys, SSM is up 55%, while bigotry polls along in the mid-30’s.
Judicial fiat is just following the will of the people (legislators used to do that, but now they follow the will of their contributors)
It seems the consistency in the rulings for equal marriage has been that those defending, ahem, traditional marriage (you know, like Solomon had, with hundreds of wives and concubines), have failed to show any injurious effects for allowing same-sex couples to receive the same legal protections. And as Richard Posner will tell you, in the absence (at least as presented in his courtroom) of any ill effects, he’s will to let some things go. Like Indiana’s voter ID law, for instance.
http://www.newrepublic.com/article/115363/richard-posner-i-did-not-recant-my-opinion-voter-id
From this telling, Posner was beyond dismissive of both Wisconsin and Indiana’s arguments, for whatever it’s worth.
http://news.yahoo.com/wisconsin-indiana-set-defend-gay-marriage-bans-053338992.html
http://www.chicagotribune.com/news/local/breaking/ct-gay-marriage-indiana-hearing-met-20140825-story.html
“Judge Richard Posner waited just seconds before interrupting the solicitor general from Indiana, beginning a line of questioning about why children of same-sex couples should not be allowed to have legally married parents, as do children of heterosexual couples.”
According to news reports, Indiana’s solicitor general gave this reason for the ban:
“Men and women create babies and there has to be a social mechanism to deal with that.”
Well, there are condoms, but I don’t think that’s the legally mandated social mechanism he had in mind.
By the way, Indiana’s births-to-unmarried-women rate is 43 percent, ahead of the 41 percent national average, so the law banning gay people from getting married sure doesn’t seem to be having an effect on the baby-making social mechanism.
http://datacenter.kidscount.org/data/tables/7-births-to-unmarried-women#detailed/2/2-52/false/868,867,133,38,35/any/257,258
Indiana Law Blog has a recording of the oral argument: http://indianalawblog.com/archives/2014/08/ind_courts_here_10.html
Listening to this now… Good God, Posner is the least sympathetic to Indiana Solicitor General Fisher…. Good luck buddy.
Fisher deserves as little respect as he was given. He has no leg to stand upon
Given the questions from the two more “liberal” judges, plus some commentary by Judge Posner, it would seem that the ultimate decision is more likely to find the Wisconsin and Indiana bans unconstitutional on Equal Protection rather than Due Process (“fundamental right”) principles. The Court won’t go so far as to say there is no fundamental right to marriage…..it doesn’t have to make that pronouncement…..it could simply say that because equal protection principles are violated, there’s not need to decided on the basis of due process. SCOTUS might well follow suit in that regard.
Doug – are Circuit judges assigned by lottery like District judges are, or do they have some sort of seniority privelege, or other mechanism? I only ask because Judge Posner is fairly prolific in his writing and curious if he asked for the case in some way.
I think it’s a lottery. But I believe this is the same panel that lifted a stay on a related case involving a terminally ill same sex partner and fast tracked the appeals earlier, so maybe there was some mechanism that kept the same three on the case.