Judge Richard A. Posner wrote an opinion in the Seventh Circuit Court of Appeals overruling the bans on same-sex marriage in Indiana and Wisconsin. During oral arguments he was scornful of the the arguments made by the proponents of the ban. And Posner’s opinion was released only nine days after oral argument, in which Posner scoffed at the arguments purporting to support the bans.
Here are some excerpts from the ruling:
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. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimina- tion is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.
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A degree of arbitrariness is inherent in government regu- lation, but when there is no justification for government’s treating a traditionally discriminated-against group signifi- cantly worse than the dominant group in the society, doing so denies equal protection of the laws. One wouldn’t know, reading Wisconsin’s brief, that there is or ever has been discrimination against homosexuals anywhere in the United States. The state either is oblivious to, or thinks irrelevant, that until quite recently homosexuality was anathematized by the vast majority of heterosexuals (which means, the vast majority of the American people), including by most Ameri- cans who were otherwise quite liberal. Homosexuals had, as homosexuals, no rights; homosexual sex was criminal (though rarely prosecuted); homosexuals were formally banned from the armed forces and many other types of government work (though again enforcement was sporadic); and there were no laws prohibiting employment discrimination against homosexuals. Because homosexuality is more easily concealed than race, homosexuals did not experience the same economic and educational discrimination, and public humiliation, that African-Americans experienced. But to avoid discrimination and ostracism they had to conceal their homosexuality and so were reluctant to participate openly in homosexual relationships or reveal their homosexuality to the heterosexuals with whom they associated. Most of them stayed “in the closet.” Same-sex marriage was out of the question, even though interracial marriage was legal in most states. Although discrimination against homosexuals has diminished greatly, it remains widespread. It persists in statutory form in Indiana and in Wisconsin’s constitution.
At the very least, “a [discriminatory] law must bear a rational relationship to a legitimate governmental purpose.” Romer v. Evans, supra, 517 U.S. at 635. Indiana’s ban flunks this undemanding test.
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Wisconsin’s remaining argument is that the ban on same- sex marriage is the outcome of a democratic process—the enactment of a constitutional ban by popular vote. But ho- mosexuals are only a small part of the state’s population— 2.8 percent, we said, grouping transgendered and bisexual persons with homosexuals. Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.
Judge Richard Posner, a conservative judge on the Seventh Circuit Court of Appeals, heard an appeal of successful lower court judicial challenges to same-sex marriage in Indiana and Wisconsin on Tuesday. He repeatedly sought the opponents to same-sex marriages to state a rational reason why same-sex marriage should be disallowed. The state counsels struck out totally with Posner.
Slate has outtakes of the oral arguments that should be required
reading listening for everyone.
Yesterday, for the first time, a Federal appeals court has ruled in favor of same-sex marriage. The case came in the 10th Circuit Court of Appeals, which concluded that states may not deny the “fundamental right” to same-sex marriage.
Also yesterday, a Federal District Court judge struck down a ban on same-sex marriage in Indiana.
The Presbyterian Church in the US has affirmed the right to marriage by same-sex couples and now allows its ministers to perform same-sex marriage where it is legal. This is pretty amazing.
[Hillary] Clinton says she didn’t support gay marriage in the 1990s but subsequently changed her mind. When and why she changed her mind is what Gross was trying to get at. Had she changed it by the time she and her husband left the White House? Or when George W Bush endorsed the Federal Marriage Amendment in 2004? Was she still opposed to marriage equality when Massachusetts became the first state to enact it legislatively in the same year? The answers to these questions remain mysterious.
But one thing isn’t mysterious: she was not just another evolving American. She was the second most powerful person in an administration in a critical era for gay rights. And in that era, her husband signed the HIV travel ban into law (it remained on the books for 22 years thereafter), making it the only medical condition ever legislated as a bar to even a tourist entering the US. Clinton also left gay service-members in the lurch, doubling the rate of their discharges from the military, and signed DOMA, the high watermark of anti-gay legislation in American history. Where and when it counted, the Clintons gave critical credibility to the religious right’s jihad against us. And on the day we testified against DOMA in 1996, their Justice Department argued that there were no constitutional problems with DOMA at all (the Supreme Court eventually disagreed).
What I’d like to hear her answer is whether she regrets that period and whether she will ever take responsibility for it. But she got pissed when merely asked how calculated her position on this was.
– Andrew Sullivan
And then, there is this:
Finally, you really should read this piece by Conor Friedersdorf.
This is a fascinating back-and-forth over same-sex marriage. Terry Gross, host of the NPR interview program “Fresh Air,” yesterday questioned Hillary Clinton as to the evolution of her support of same-sex marriage, and whether it was all a carefully considered political calculation by Clinton. Clinton doesn’t take too kindly to Gross’ questions. And Gross pushes back against Clinton.
Clinton comes off the loser.
Clinton did not support same-sex marriage until 2013. This hardly qualifies as enlightened on the issue and certainly, at least to me, it seems clear that Clinton waited until the coast was clear before coming out publicly in favor of same-sex marriage. Not a profile in courage and reflective of a strong approach to equal rights.
Over at The Vox, they showed the actual statistics of support for same-sex marriage in 1996 compared to 2014:
This time a US District Court judge ruled that Pennsylvania’s prohibition on same-sex marriage is unconstitutional.
A federal judge Tuesday declared Pennsylvania’s ban on same-sex marriage unconstitutional, the fourth such ruling on a state ban in the past three weeks.
Judge John Jones III ruled in favor of 23 Pennsylvania residents who challenged the law.
“The issue we resolve today is a divisive one. Some of our citizens are made deeply uncomfortable by the notion of same-sex marriage. However, that same-sex marriage causes discomfort in some does not make its prohibition constitutional,” he said.
There is an interesting side note in the judge’s decision. He essentially uses Scalia’s opinion in Windsor to reach the result:
As Justice Scalia cogently remarked in his dissent, “if [Windsor] is meant to be an equal-protection opinion, it is a confusing one.” Windsor, 133 S. Ct. at 2706 (Scalia, J., dissenting). Although Windsor did not identify the appropriate level of scrutiny, its discussion is manifestly not representative of deferential review. See id. (Scalia, J., dissenting) (observing that “the Court certainly does not apply anything that resembles [the rational-basis] framework” (emphasis omitted)). The Court did not evaluate hypothetical justifications for the law but rather focused on the harm resulting from DOMA, which is inharmonious with deferential review.
By the way, Judge Jones was appointed to the bench by George W. Bush.
Update: Gallup is out with a new survey that shows that support for same-sex marriage in the United States is at an all-time high of 55%. And there is this:
Today a US District Court judge has ruled that Oregon cannot prohibit same-sex marriages. And, same-sex marriages there can start today since the judge, Michael McShane, did not impose a stay on his order and it appears that Oregon officials will not file for a stay. This makes 12 trial court rulings in the past several months to affirm the marriage rights of gay couples.
You can read the full opinion here.
– Arkansas Circuit Court Judge Christopher Piazza, ruling Friday that Arkansas’ prohibition on same-sex marriage is unconstitutional. The state is seeking an immediate stay of the decision.
And, also yesterday, Rep. Louie Gohmert (R-TX), compared those who favor same-sex marriage to the Nazis. For one view of this approach, see Godwin’s Law and Reductio ad Hitlerum.
Update: On Saturday, May 11, same-sex weddings began in Arkansas.
Shortly after being issued the state’s first same-sex marriage license, two women were married outside the Carroll County Courthouse in Eureka Springs on Saturday.
A deputy county clerk issued the license on Saturday morning to Kristin Seaton and Jennifer Rambo of Fort Smith — breaking a barrier that state voters put in place with a constitutional amendment 10 years ago.
Honey Made, in early March, launched this heartwarming commercial:
Of course, a bunch of haters sent in irate email to the company. And here is how the company responded:
(via 22 Words)
Good news, as another decision affirming the right to same-sex marriage is issued by a US District Court in Michigan. The full text of the ruling is here. The state has determined that it will appeal the decision, however. By the way, the Judge, Bernard A. Friedman, was appointed to the court by Ronald Reagan.
Tradition is revered in the Commonwealth [of Virginia], and often rightly so. However, tradition alone cannot justify denying same-sex couples the right to marry any more than it could justify Virginia’s ban on interracial marriage.
– U.S. District Judge Arenda L. Wright Allen, from an opinion issued this week striking down the ban on same-sex marriage in Virginia.
In what Grammy organizers hoped would be a heartwarming showstopper, 33 gay and straight couples were officially married — by Queen Latifah, deputized by Los Angeles County — during a performance of Macklemore & Ryan Lewis’s marriage-equality anthem “Same Love,” which also featured Madonna.
The wedding segment led to some criticism from conservatives. On Sunday afternoon, after news of the weddings was reported by The New York Times, Bryan Fischer, the director of issue analysis of the conservative American Family Association, said on Twitter that the Grammys were featuring “sodomy-based wedding ceremonies.”
– as reported by The New York Times