In the least surprising news ever, the 7th Circuit Court of Appeals has overturned state laws banning same-sex marriage in Indiana and Wisconsin. Anyone who listened to the oral argument a couple weeks ago knew this was coming after the judges turned the lawyers defending those bans into babbling 1Ls during questioning. The ruling, which you can read here, was written by Judge Richard Posner, a Reagan appointee and conservative legend.
The unanimous decision by the three-judge panel of the U.S. 7th Circuit Court of Appeals in Chicago criticized the justifications both states gave for the bans, several times singling out the argument that marriage between a man and a woman is tradition. There are, the court noted, good and bad traditions.
“Bad traditions that are historical realities such as cannibalism, foot-binding, and suttee, and traditions that from a public-policy standpoint are neither good nor bad — such as trick-or-treating on Halloween,” it said. “Tradition per se therefore cannot be a lawful ground for discrimination-regardless of the age of the tradition.”
Same-sex marriage is legal in 19 states and the District of Columbia. Bans that have been overturned in some other states continue to make their way through the courts. Since last year, the vast majority of federal rulings have declared same-sex marriages bans unconstitutional…By standards of the 7th circuit, the decision was unusually fast — coming just nine days after oral arguments — suggesting unanimity came easily to the panel.
Judge Richard Posner, an appointee of Repubican President Ronald Reagan in 1981, wrote Thursday’s opinion for the panel. During oral arguments, it was Posner who fired the toughest questions at defenders of the bans, often expressing exasperation at their answers.
The ruling echoes his comments during oral arguments that “hate” underpinned the gay-marriage bans, saying, “Homosexuals are among the most stigmatized misunderstood, and discriminated-against minorities in the history of the world.”…
“If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a harmless anachronism; it is a violation of the equal protection clause,” the opinion says.
Well said. The states say they’re going to appeal to the Supreme Court, but that’s pretty much irrelevant. There are already several cases on appeal.