Highlights of 7th Circuit Oral Argument on Marriage Equality

Last week the 7th Circuit Court of Appeals heard oral argument in legal challenges to the bans on same-sex marriage in Indiana and Wisconsin. You can listen to the whole thing here and it’s quite amusing. The attorneys for those two states got absolutely pummeled by the judges and were completely unprepared for some very obvious questions. I’m gonna highlight some of my favorite parts, like this exchange between several of the judges and Indiana Solicitor General Thomas Fisher.

JUDGE POSNER: “You allow the homosexual couples to adopt. Why don’t you want their children to have the same advantages as children adopted by heterosexual couples?”

FISHER: “The question is what can we do to nudge heterosexual couples who may produce children, you know, unintentionally to plan for this—to plan for the consequences and appreciate the consequences of sexual behavior. Those consequences don’t arise with same-sex couples. It’s not in the context of adoption that marriage—”

JUDGE POSNER: “But you’re not answering my question. You’ve got millions of adopted children, and a lot of them—200,000 or more—are adopted by same-sex couples. Why don’t you want their children to be as well off as the adopted children of heterosexual couples?”

FISHER: “Of course we do…. [but] the marriage scheme is not set up with adoption in mind.”…

JUDGE WILLIAMS: “Wouldn’t you agree that marriage is not just about having children, but about raising children? You agree that there are two components?”

FISHER: “Oh, yes.”

JUDGE WILLIAMS: “Okay, then are you saying same-sex couples cannot successfully raise children?

FISHER: “Absolutely not.”

JUDGE WILLIAMS: “Well, if Indiana’s law is about successfully raising children and you agree same-sex couples can successfully raise children, why shouldn’t the ban lifted as to them?”

FISHER: “I think the assumption is that with opposite-sex couples there is very little thought given during the sexual act, sometimes, to whether babies may be a consequence.

JUDGE WILLIAMS: “So because gay and homosexual couples actually choose to be parents, choose to take on that obligation, that difference of choice is—you’re, you’re setting that up differently than accidental. So I mean, here are people who want to have children, know they want to have children, it is not accidental, they make that commitment to raise the children. I just don’t get that, it’s another aspect of what Judge Posner is raising.”

FISHER: “And I think the working assumption there, your honor, is that, in that circumstance, the state doesn’t need to nudge those couples to stay together. There already is that working understanding. With opposite-sex couples it may be a fleeting moment of passion that leads to a child and that’s what we’re trying to address, trying to deal with the consequences.”

Such a bizarre and incoherent argument. Apparently straight couples are so irresponsible that the state has to “nudge” them to stay together for the children, but gay couples are so committed to their children that they don’t have to. And Fisher thinks this justifies preventing gay couples from getting married? Does he think that if they do allow gay couples to get married, straight couples will break up despite the children just because they’re no longer given rights that gay couples don’t have?

Wisconsin Assistant Attorney General Timothy Samuelson fared no better. When Judge Posner asked him what the justification was for the law, they had this exchange:

Samuelson: That’s a legislative decision.

Posner: You mean you can’t think of any reason for it?

Samuelson: The statute is written toward the general rule, not the exception. The general rule is for opposite-sex couples.

Posner: And why is that?

Samuelson: Because that’s what the legislature has said.

Posner: Why? Is there a reason? It doesn’t need a reason? Or what?

Samuelson: I think there’s several reasons. I think tradition is one of the reasons…

Posner: Well how can tradition be a reason for anything? I don’t get that. That’s again the Loving case, right? The tradition of forbidding interracial marriage went back to colonial times, it was 200 years old by the time Loving came along.

Samuelson: I think Loving was a deviation from the common law rather than codifying it?

Posner: WHAT? (with some astonishment and frustration) Where’s he come with…look, interracial marriage had been forbidden in the colonies and in many, many states, not just Southern but Western for literally, well more than a hundred years. So why wasn’t that a tradition?

Samuelson: Uh…It’s distinguishable, it’s a different tradition.

Posner: Of course it’s a different tradition. So in other words, tradition per se is not a ground for continuing. We’ve been doing this stupid thing for a hundred years or a thousand years, we’ll keep doing it because it’s tradition. You wouldn’t make that argument.

Samuelson: But we’re not making that argument (two minutes after he made that exact argument).

Posner: Don’t you have to have some empirical or some practical or some common sense basis for barring these marriages? I mean, what’s the reason? I didn’t get anything out of your brief that sounded like a reason for doing this.

Samuelson: Our position is that tradition is based on experience, that’s collective experience…

Posner: Yes, Loving, tradition, tradition, hundreds of years, no interracial marriage. They would make the same arguments you would make — tradition. We don’t wanna change it because we don’t know what’ll happen, right?

Samuelson next tried to use the argument that the courts should defer to the will of the people, to laws that are passed democratically. Posner was having none of it. And astonishingly, Samuelson actually ducked into the punch by bringing up Loving again:

Posner: That argument doesn’t get you very far. You’re really saying that there shouldn’t be any constitutional invalidation ever of a state or federal statute because that’s anti-democratic.

Samuelson: We’re not saying that…

Posner: Well what would be an example of a statute passed by a democratically elected legislature that you would consider unconstitutional.

Samuelson: If Wisconsin passed a statute or a constitutional amendment prohibiting interracial marriage, that would clearly be unconstitutional.

Posner: Why? It would be the democratic choice of the people of Wisconsin.

Samuelson: Well at the very least, Loving says so. And Loving would trump the state.

Posner: The whole question here is not whether democracy insulates, you argue that democracy insulates legislation from constitutional invalidation. Now you have to have something better, you have to say, why is your law less…you accept Loving as governing precedent, why isn’t this rather similar, right? People wanna get married and you don’t seem to have any reasons. You don’t say homosexuality is a choice, right?

Samuelson: We’re not making that argument. Frankly, we’re agnostic, we just don’t know.

Posner: What concrete, factual arguments do you have against allowing homosexual marriages?

Samuelson: We have 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 that out Edmund Burke in the Loving case, right? What’s the difference? There was a tradition of now allowing blacks and whites and the other iterations as well from marrying, right? It’s 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 tradition of rather savage discrimination against homosexuals in the United States and the rest of the world?

Samuelson: I won’t disagree that historically homosexual persons have been the target of discrimination, however I won’t agree that that’s the basis for Wisconsin’s law.

Posner: Including governmental discrimination, not just private.

Samuelson: Well Wisconsin was the first state in the nation to prohibit discrimination in employment and housing based upon sexual orientation, it’s been on the books for more than 30 years.

Posner: So why are you drawing a line at marriage?

Samuelson: Um…because that’s a legislative decision…

Posner: But now you’re back to this notion legislative decisions are sacred, right? But every time a statute is invalidated as unconstitutional, a democratic process is overridden.

You really should listen to the audio to hear the exasperation in Posner’s voice as Fisher and Samuelson continually duck and dive and avoid answering his questions squarely. They simply have no answers for them.

POPULAR AT PATHEOS Nonreligious
What Are Your Thoughts?leave a comment
  • Kevin Kehres

    Posner’s opinion is going to be spectacular.

  • Taz

    Clearly the state should just ban heterosexual sex!

    (Has anyone read “The Forever War”?)

  • Reginald Selkirk

    Are those attourneys elected or appointed?

  • hunter

    “They simply have no answers for them.

    They have no answers, they have no arguments, they have no case. But they’re appealing those decisions anyway.

  • D. C. Sessions

    And if this one goes to the SCOTUS, I can well imagine one of the Justices (Ginsburg, especially) simply asking whether the appellants have any new responses to the questions that Judge Posner asked and that they were unable to answer.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    They simply have no answers for them.

    They do, but “Fags bad” doesn’t carry the weight it used to.

  • John Pieret

    They simply have no answers for them.

    The hardest job for any lawyer is to defend the indefensible.

    Reginald Selkirk:

    Are those attourneys elected or appointed?

    While I haven’t looked them up, a Solicitor General and an Assistant Attorney General are most likely appointed positions.

    hunter:

    But they’re appealing those decisions anyway.

    It’s a political decision and, as always, it depends on which part of the public the governor wants to pander to.

  • Chiroptera

    Reginald Selkirk, #3:

    I would love it if one of the attorneys would just blurt out, “Look, I realize that these arguments are dumb, but they’re all I have. Hell, I didn’t even want to take this case, but all the people with more seniority refused to do it!:”

  • Loqi

    I feel like a sadist for enjoying this so much. It’s a good thing intellectual beatings don’t draw blood.

  • http://artk.typepad.com ArtK

    State attorneys general are elected in 43 states and Guam (per Wikipedia). As noted, an assistant AG is likely appointed but that doesn’t protect them from political fallout. Especially if they want to run for AG in the future. Refusing to do what the AG says to do could easily mean loss of your job and/or no party nomination if you want to run.

    I don’t know whether the attorneys arguing this case are ideologues who are just out of their depth, or are appointees who have been handed a sack-of-shit case and told that they have to make it work, somehow.

  • jeevmon

    I think that they thought the “tradition” and “democratic process” arguments were getting some traction at the 6th Circuit, and were testing those arguments because they really don’t have much else.

  • cptdoom

    Apparently the grilling by the judges was so harsh that one reporter tweeting the event said that Samuelson of Wisconsin looked like he needed a hug afterwards.

  • Alverant

    Oh no, they have square answers. They just won’t say them in open court because they know it will destroy their case faster than them tap dancing around the issues.

  • Scientismist

    FISHER: “And I think the working assumption there, your honor, is that, in that circumstance, the state doesn’t need to nudge those [same-sex] couples to stay together. There already is that working understanding. With opposite-sex couples it may be a fleeting moment of passion that leads to a child and that’s what we’re trying to address, trying to deal with the consequences.”

    Amazing. So the “working assumption” is that same-sex couples already have a more trustworthy moral compass, and so the State’s “nudge” must be reserved for those irresponsible hetero couples, who will revert to their base instincts of child neglect unless they get tax deductions and more flexible family health insurance benefits. So you see, your Honor, we don’t like it either, but we are forced, as a matter of necessity, to make life as hard as possible for the gays and their kids, so that the straights will appreciate how special we think they are for sticking it out and keeping their own kids clothed and fed.

  • fusilier

    The Indiana Solicitor General is an appointed position. He’s there because the elected Indiana Attorney General, Greg Zoeller, refused to go.

    His explanation for passing the bu…I mean deferring to his colleague … was incoherent, to say the least.

    fusilier

    James 2:24

  • moarscienceplz

    FISHER: “And I think the working assumption there, your honor, is that, in that circumstance, the state doesn’t need to nudge those couples to stay together.

    I think this makes perfect sense. Marriage should be a bond and a burden placed on people to force them to stick around and change those dirty diapers. It is the people who *want* to get married who are the wrong-thinkers. This is the proper approach to gun ownership, as well. If you really want to own a gun, you are probably not rational enough to be trusted with one. Only people who hate guns should be allowed to have them.

    😉

  • scienceavenger

    Apparently straight couples are so irresponsible that the state has to “nudge” them to stay together for the children, but gay couples are so committed to their children that they don’t have to.

    I’m amazed Posner was able to keep his seat at this point, because I would have fallen out of mine. One of the stallwart rightwing arguments against homosexual marriage has been that homosexuals are inherently immoral: dishonest, because they lie all the time, irresponsible – look at their thousands of lovers, not really interested in marriage anyway, and can’t have kids. Now suddenly they can’t get married essentially because they are TOO committed and responsible!?!?

    Unbelievable. Do these people hear the words coming out of their mouths any more?

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    “Your Honor, gays are responsible and heterosexuals irresponsible.”

    “Isn’t that the exact opposite of an argument you used before?”

    “I plead the Fifth.”

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    Apparently Scienceavenger types faster than me. Granted, Scienceavenger has fingers, whereas I’m a blob of protoplasm.

  • chilidog99

    As bad as the arguments from the state are, you know that Scalia will find a way to justify them.

  • wscott

    a Solicitor General and an Assistant Attorney General are most likely appointed positions.

    Indiana’s Solicitor General is appointed. As for the assistant AG, in most States the AG is elected and can appoint a handful of Deputies. The remaining lawyers (a couple hundred or more) are career-service hires, not political appointees; they may be called Assistant AGs, but that doesn’t necessarily mean they’re near the top of the org chart. Samuelson isn’t “important” enough to get his bio listed on the AG’s website, so I’d be willing to bet he’s hired not appointed.

  • Childermass

    D. C. Sessions @ 5:

    And if this one goes to the SCOTUS, I can well imagine one of the Justices (Ginsburg, especially) simply asking whether the appellants have any new responses to the questions that Judge Posner asked and that they were unable to answer.

    I think we have a winner.

    Modusoperandi @ 6:

    They simply have no answers for them.

    They do, but “Fags bad” doesn’t carry the weight it used to.

    And this is fundamentally what has changed. The text of the Constitution has not changed, but our understanding has. Facts have consequences. If homosexuality was a choice, a moral perversion, a threat to society, and a sign of a diseased mind then these states would have a case. But society has advanced, we have learned from experience, and we know some of the old “facts” are not so. Informed non-bigots can’t deny this anymore. It is now undeniable that homosexuals do not choose to be homosexuals and merely being homosexual does not make anyone a threat to anyone. Informed people are now left with religious commands that are unconstitutional to enforce and sheer bigotry. And bigotry does not trump equal protection under the law. In a constitutional republic laws are passed for the needs of society and not pander to bigots. Laws that deny due process and/or equal protection of the law in order to pander to bigots are themselves illegal.

  • Chiroptera

    chilidog99, #20: As bad as the arguments from the state are, you know that Scalia will find a way to justify them.

    Yes. What if a closely held state government has a sincerely held religious belief that gayness is bad?

  • https://www.facebook.com/kalli.procopio Kalli Procopio

    My favorite line happened during Judge Posner discussing the stories of children raised by same sex couples. It went something like this:

    Posner: Those stories make quite an impression.

    Fisher: Yes it was quite an impression, I just didn’t remember them.

  • D. C. Sessions

    As bad as the arguments from the state are, you know that Scalia will find a way to justify them.

    No real need to bother with the arguments that the parties make — he’ll just have a conversation with the Founders on the Original Intent of the Constitution, and as soon as they understand what he’s telling them it’ll all be smooth.

  • dingojack

    Chiroptera (#23) – yes, but it a state a person?!?

    I mean can a state refuse a citizen of that state the right to have an abortion because of the state’s ‘sincerely held’ religious beliefs, or can it own a thermonuclear device (or more), or secede, or not pay (Federal) taxes, or….

    I’m sure Tony Ducks would love to wade in here.

    @@

    Dingo

  • John Pieret

    Chiroptera @ 23:

    What Scalia will say (he’s been saying it for a quarter century now) is that the majority can pass any law it likes unless there is a specific right enumerated in the Constitution prohibiting it and understood at the time it was put in the Constitution to give that specific right … he’s argued that the equal protection clause of the 14th Amendment does not prohibit sex discrimination or discrimination based on sexual orientation because the people who passed that amendment didn’t think about discrimination against women and gays. If women and gays want to change that, they have to become the majority or convince the majority to pass laws preventing such discrimination.

    https://www.callawyer.com/Clstory.cfm?eid=913358

    [Spit!] Just recounting that makes me feel dirty.

  • jws1

    John Pieret @27: But he has no problem whatsoever with citing the 9th to interpret unenumerated rights with which he agrees. Gotta love that integrity.

  • whheydt

    Re: Tz @ #2…

    Yes, And I hold it as the Viet Nam era answer to the WW2 era Heinlein work, _Starship Troopers_. (The “era'” applies to the authors as the works were written after the respective wars took place.) Want to have an interesting read? Read the two works back to back.

  • MyPetSlug

    Re: John Pieret says @ 27

    The biggest thing with Scalia is he was ask “When did gay marriage become a right? When did this brand new right that we never knew about suddenly appear? What year?” Which will implicitly shift the burden of proof from the government claiming it has a legitimate reason, for which there is none, to deny something onto the individual claiming they have a right to something. Then it allows him to play the intent game. With any date given or law named, he can claim the original intent was never to allow gay marriage.

  • eric

    Chiroptera:

    Yes. What if a closely held state government has a sincerely held religious belief that gayness is bad?

    Even worse, allowing gay marriage will restrict the ability of our corporation-citizens to use their speechmoney freely.

  • Crimson Clupeidae

    Taz@2: One of the first sci-fi novels I read. =)

    It is funny watching these clowns flounder around trying not to blame their anti-gay attitudes on their religion or just plain personal biases.

  • eric

    FISHER: “Of course we do…. [but] the marriage scheme is not set up with adoption in mind.”…

    Correct: marriage was set up with the two grown adults in mind. Federal tax breaks for dependents were set up in mind for children, but those aren’t marriage. The federal requirement for family health care plans was set up with children in mind, but again, those aren’t marriage. Marriage is the licence between two adults that conjoin their property, gives some legal authorities to each to speak for the other, and so on. And that was not set up for children, because none of the immediate benefits it offers have anythnig to do with children.

    In fact there are ways in which marriage penalizes children. If you are single with a kid, and you die (without a Will saying something else), the kid gets everything. If you are single with a kid, get married, then die, the spouse gets everything. How is that a benefit to the child?

  • whheydt

    Latest news… a Federal Judge in Lousiana has UPHELD LA’s anti-SSM laws, including LA not recognizing SSM from other states. Plaintiffs have said they will appeal.

  • gshelley

    he’s argued that the equal protection clause of the 14th Amendment does not prohibit sex discrimination or discrimination based on sexual orientation because the people who passed that amendment didn’t think about discrimination against women and gays.

    I’ve probably said this before, but that could be easil fixed with a new constitutional amendment, something along the lines of

    The text of the 14th amendment shall read ” All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

  • gshelley

    oh, and I haven’t seen the actual Louisiana ruling yet, but the bits I have seen are terrible. Accepting the states claim that limiting marriage to oposite sex people is rational because it promotes children being raised with their biological parents, and throwing in a slippery slope argument – will people be able to marry their nieces or even brothers next?

    It certainly looks like he decided he wanted to uphold the law and threw in whatever flimsy justifications he could think of and didn’t bother to address the fact they had already been refuted in other jurisdictions

  • John Pieret
  • John Pieret

    I haven’t read it yet but based on Lyle Denniston’s article:

    http://www.scotusblog.com/2014/09/louisiana-same-sex-marriage-ban-survives-challenge/

    … it appears to be primarily following Scalia’s majoritarian views … tradition … seeking a new right … such things should be determined in the political realm … blah, blah, blah …

  • Michael Heath

    Loqi writes:

    I feel like a sadist for enjoying this so much. It’s a good thing intellectual beatings don’t draw blood.

    I always enjoy probing questions that get to the heart of the matter. But I’ve been worn down over the decades watching conservative Christians cowardly and hatefully avoid all good arguments against their bigotry. I rarely enjoy watching them get beatdown for the simple reason they do not adapt.

    It doesn’t matter how good the arguments are against conservative Christians. Nor does it matter if they can’t raise a credible argument. The conservative justices who are also conservative Christians, like Scalia and Thomas, are not going to defend gay people’s rights and the rights of their children. They’re going to promote the bigotry of their tribe. So while the suffering will eventually die out as conservative Christians die while their progeny deserts them, the suffering against gay people and their kids will last far too long.

    And even when gay marriage is an equally protected right across the entire country, conservative Christians will continue to abuse gay children who are congregants in their churches. And they’ll use the very same fatally flawed arguments then that they do now, just like they use the same failed arguments they’ve long used against atheists and scientists. Or they’ll practice the same avoidance and denialism they do now in order to continue to abuse these kids.

  • EnlightenmentLiberal

    If homosexuality was a choice,

    Irrelevant.

    @jws1

    John Pieret @27: But he has no problem whatsoever with citing the 9th to interpret unenumerated rights with which he agrees. Gotta love that integrity.

    and

    @MyPetSlug

    Re: John Pieret says @ 27

    The biggest thing with Scalia is he was ask “When did gay marriage become a right? When did this brand new right that we never knew about suddenly appear? What year?” Which will implicitly shift the burden of proof from the government claiming it has a legitimate reason, for which there is none, to deny something onto the individual claiming they have a right to something. Then it allows him to play the intent game. With any date given or law named, he can claim the original intent was never to allow gay marriage.

    IMHO, as some here know, that’s the wrong reading of the ninth, and the law that the founders tried to set up. Jefferson seemed to stumble upon it here:

    The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.

    However, AFAIK, this principle was never made clear until John Stuart Mill wrote about it in On Liberty.

    Under that principle of government, homosexual behavior is protected. It does no harm to my neighbor to have sexual relations with anyone in the privacy of my own home. “It neither picks his pocket nor breaks his leg.” In light of possibly misunderstandings of modern libertarians, let me also add: “Nor it is an abandonment of my basic duties towards my fellow human beings.” Mill was not advocating modern libertarianism.

    @gshelley

    I’d go further. Off the top of my head, I’d suggest text an amendment with the following text:

    * The congress and the states shall make no law restricting the voluntary action of informed consenting adults based on mere animus, moral disapproval, religious disapproval, or the like. Further, no law shall be passed on the mere basis that society knows better how those adults should live their lives. “Over himself, over his own body and mind, the individual is sovereign.”

    * This amendment shall not be construed to give additional power to the congress nor the states to limit the rights of the people.

    * All persons shall have standing in court to challenge any law on this basis. Litigants do not need to show harm. Litigants only need to show that there is such a law.

    This has a couple of nice benefits. It gets rid of a lot of stuff in one fell swoop:

    * Drug war is ended.

    * LGBT rights are restored.

    * Protects racial rights too.

    * Sin taxes go away.

    * A lot of obscenity law also goes away.

    * And is otherwise just awesome.

    Really. What is to not love about instituting The Harm Principle as a fundamental right?

    PS: I welcome any better phrasings. I just whipped this out of my ass. I think it works well. Am I missing any unforeseen consequences?

  • gshelley

    Having just read it, that was spectacularly bad. It oases rational basis for two reasons, firstly because the state says it does and secondly because it is rational to stick with tradition.

    The section on why this issue is different to the anti miscegenation laws, ending with (paraphrase) “besides, these laws apply equally to men and women” is almost painful.

  • whheydt

    Re: gshelley @ #41….

    In other words, pretty much all the stuff Posner raked those lawyers over the coals for as he rejected it. It’d be fun to send the judge selected transcript bits from the 7th Circuit, pointing out that an *appellate* judge thinks his reasoning is full of it.

  • Pingback: Right wing now arguing gays too responsible for marriage | artofnuance()

  • eric

    @34:

    a Federal Judge in Lousiana has UPHELD LA’s anti-SSM laws, including LA not recognizing SSM from other states. Plaintiffs have said they will appeal.

    Would it go to the Lousiana surpreme court or the 5th Circuit? Does any lawyer out there know how those bodies tend to rule on civil rights cases? For the 5th circuit, wikipedia tells me there are 15 appointments from Republican presidents and 8 from Dems (plus 2 vacancies), but that’s at best a very superficial and often wrong way to estimate how they might rule.

  • John Pieret

    Would it go to the Louisiana surpreme court

    No. The next step would be the Federal Circuit Court of Appeals.

    Does any lawyer out there know how those bodies tend to rule on civil rights cases?

    Despite casting any bones we happen to find and chanting all the magic spells we know, the judges just keep surprising us. Vaguely, the 5th and 6th are the most “conservative” (depending on your definition), while the 9th and 2nd are the most “liberal” (definition again) and the rest are betwixt and between. Not so strangely, the 5th and 6th could be characterized as the “heartland” circuits, while the 9th and 2nd are the left and right coast circuits. It ain’t as simple as that, of course.

    This case is unlikely to wend its way to SCOTUS by next term. I think (no guarantees) the decisions in the 10th and 4th will. Both are strongly pro-SSM. But the Justices will be aware of this case. I still think Posner’s opinion will carry great weight with Kennedy (and, perhaps, Roberts). This decision is (for those of us not in Louisiana) no big deal.

  • eric

    John,

    Ah, thanks for that. So, basically, whatever happens to this case on appeal, what is reasonably likely to happen is that a different SSM case (or cases) gets to SCOTUS in the same year and, and those cases set the precedent, not this one.

    This does not fill me with supreme (or Supreme) confidence. On one hand I think Ed’s arguments about Kennedy being on the pro-gay rights side of this issue are pretty good. On the other, he has completly surprised me in terms of his conservativism in many recent cases. The two I’m thinking about praticularly are McCutcheon and Greece vs. Galloway. In the first, he signed on to the ‘money is speech’ line the more conservative justices were proposing. In the second, he authored the opinion, and HE said that meeting prayers “bear no resemblance” to coercive prayer.

  • eric

    Arg, sorry, that quote is not his, it’s part of the summary in front of the opinion. Here’s what Kennedy himself said:

    If circumstances arise in which the pattern and practice of ceremonial, legislative prayer is alleged to be a means to coerce or intimidate others, the objection can be addressed in the regular course. But the showing has not been made here, where the prayers neither chastised dissenters nor attempted lengthy disquisition on religious dogma.

    So, basically, it doesn’t count as coercive unless they chastise you or lengthily discuss dogma. And this:

    The inclusion of a brief, ceremonial prayer as part of a larger exercise in civic recognition suggests that its purpose and effect are to acknowledge religious leaders and the institutions they represent rather than to exclude or coerce nonbelievers.

    Which shows that he clearly doesn’t get the basic point that the government specially acknowledging believers and religious instutions is going to make the nonmember citizens feel they are outsiders, that those religious institutions are privileged in the eyes of government, a type of informal or under the table establishment.

    My point here is that his opinion in recent years seems to have gotten very conservative on a range of issues. Surprisingly so. We should not necessarily think that his liberalism towards gays in past rulings is a good predictor of how he’s going to rule on SSM in 2015. Maybe the difference between Ed and I here is that Ed might give 100:1 or 10:1 odds for a pro-SSM ruling, but I’m at more like 2:1 at most.

  • whheydt

    Re: John Pieret @ #44…

    I still think Posner’s opinion will carry great weight with Kennedy (and, perhaps, Roberts). This decision is (for those of us not in Louisiana) no big deal.

    Okay. You asked for it. The 7th Circuit gave it’s decision today covering Wisconsin and Indiana. They threw out the anti-SSM laws.

  • John Pieret

    OMG! This is incredibly quick for a Circuit Court of Appeal! Usually, it’s a month or more before an opinion is written! Posner (who wrote it) must have written it before the oral arguments! Nicely (compared to the recent LA Federal Judge’s decision), he ruled that anti-SSM laws fail the “rational basis” test.

    I haven’t read Posner’s decision yet, but I can’t wait! In the meantime here is Lyle Denniston’s article about it:

    http://www.scotusblog.com/2014/09/indiana-wisconsin-same-sex-marriage-bans-fall/

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