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7th Circuit Appeals Panel Not Buying Anti-Equality Arguments

Earlier this week, a three-judge panel of the 7th Circuit Court of Appeals heard oral argument in the appeal of a lower court ruling striking down Wisconsin’s ban on same-sex marriage. The panel includes the legendary judge Richard Posner, a libertarian and maybe the single most respected federal judge not on the Supreme Court, and he was clearly not buying the state’s arguments.

Posner: What concrete factual arguments do you have against homosexual marriage?

Samuelson: Well, we have, uh, the Burkean argument, that it’s reasonable and rational to proceed slowly.

Posner: That’s the tradition argument. It’s feeble! Look, they could have trotted out Edmund Burke in the Loving case. What’s the difference? There was a tradition of not allowing black and whites, and, actually, other interracial couples from marrying. It was a tradition. It got swept aside. Why is this tradition better?

Samuelson: The tradition is based on experience. And it’s the tradition of western culture.

Posner: What experience! It’s based on hate, isn’t it?

Samuelson: No, not at all, your honor.

Posner: You don’t think there’s a history of rather savage discrimination against homosexuals?

The attorney came under strong questioning by all three members of the panel. This is the problem that the anti-equality side has in all of these case — everyone knows what the real justification for these bans are, it’s bigotry. But they can’t admit that, so they have to invent all of these illogical pretexts that are easy to debunk under questioning.

Comments

  1. says

    But what about the rest of us? What about us Conservative Christian Americans? Without legal cover to treat this Unpopular Minority like shit, what will we do with our lives? Live them? Come on! I wouldn’t live my life if you paid me. It’s all dark and full of bile.

  2. John Pieret says

    If Posner finds against the same sex marriage bans, that is going to carry a lot of weight, I suspect, in Justice Kennedy’s mind.

  3. gshelley says

    Josh Blackman (apparently a professor somewhere) has more examples
    http://joshblackman.com/blog/2014/08/26/posners-greatest-hits-in-ssm-oral-arguments-pathetic-ridiculous-and-absurd/
    He calls Posner a “bully from the bench” but apart from that seems to agree that the lawyers couldn’t have done better

    Looking at the discussion, it seems that Posner just lost patience with the blatantly dishonest justifications from the pro-ban camp. They’ve been so thoroughly discredited in multiple cases, it is getting really hard to believe that anyone rational can actually hold them and that they are just being put forward because lawyers are hoping to find judges as bigoted as them and to give them some semblance of an excuse for upholding bans.

  4. eric says

    If Posner finds against the same sex marriage bans, that is going to carry a lot of weight, I suspect, in Justice Kennedy’s mind

    Unfortunately it’s going to carry even more weight in Senate Republican eyes, and Posner will never make it to SCOTUS, even if a Dem gets elected president after Obama, even with his legal reputation.

  5. says

    eric “Unfortunately it’s going to carry even more weight in Senate Republican eyes, and Posner will never make it to SCOTUS, even if a Dem gets elected president after Obama, even with his legal reputation.”
    To be fair, the same outcome would be expected even without this case.

  6. Chiroptera says

    eric, #5:

    I see your point about Republicans not wanting someone like Posner on the Supreme Court. I mean, can you imagine how Hobby Lobby would have gone if Green’s lawyers had to try to present factually correct, well-reasoned arguments?

  7. Crimson Clupeidae says

    I would love to see a Dem pres nominate Posner, just to watch the cognitive dissonance of all the pretend libertarians the senate.

  8. D. C. Sessions says

    IIRC Posner has been asked about a SCOTUS appointment and said that the appellate bench is better because that’s where the real action is.

    Besides which, of course, he’s far too old.

  9. Michael Heath says

    Samuelson: The tradition is based on experience. And it’s the tradition of western culture.

    Posner: What experience! It’s based on hate, isn’t it?

    It should also be noted that as gay marriage laws pass via legislation, those same legislatures are creating laws that allow conservative Christians to maintain their hate-based policies within their churches. That’s been the price to avoid Republican filibusters.

    Because government-protected discrimination against gay people in the private sphere results in the abuse of gay children who are congregants in conservative churches, it’s not merely hate-based. It’s also demonstrably evil; evil’s that’s now guaranteed to continue for years within conservative Christian congregations.

  10. RickR says

    Michael Heath-

    those same legislatures are creating laws that allow conservative Christians to maintain their hate-based policies within their churches.

    No Michael, they are not “creating laws that allow Christians to maintain their hate-based policies within their churches”, they’re adding language to stroke conservative Christian fears that equality means they will lose protections guaranteed by the First Amendment, protections they were never in any danger of losing by the changing status quo on legal equality.
    You’ve mentioned this over and over, and blamed liberals for turning a blind eye to what goes on in conservative churches regarding being toxic environments for gay children (and young girls).

    No, the conservative christian “stance” toward gays and women isn’t good in any way, especially for young gays and girls growing up in that subculture. But my question to you is this-

    What part of the First Amendment do you propose we gut to change what conservative christians are allowed to teach their kids in their churches? And having made that change, how exactly do you propose to keep those same changes from being used against parents who want to raise their kids as atheist, or liberal?

  11. eric says

    Modus:

    To be fair, the same outcome would be expected even without this case.

    Probably, but I think Posner really cut loose in this case in a way that’s going to be seen as “unforgivable” to conservatives. It’s one thing to issue a dry, legalistic opinion rejecting an anti-SSM measure. Lots of even conservative judges have been doing that. It’s quite another to point out the emporer has no clothes by shouting “HE’S NAKED, LOL.”

    DC Sessions:

    Besides which, of course, he’s far too old.

    Yes I had forgotten about that. You’re right on that score.

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