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Seventh Circuit rules marriage bans in Indiana and Wisconsin are unconstitutional

LGBT Legal Cases Marriage equality Marriage Equality Trials

In an opinion by Judge Richard Posner, the Seventh Circuit Court of Appeals has ruled in Wolf v. Walker and Baskin v. Bogan that same-sex marriage bans in Wisconsin and Indiana are unconstitutional.

The opinion can be read here. Posner writes:

To return to where we started in this opinion, more than unsupported conjecture that same-sex marriage will harm heterosexual marriage or children or any other valid and important interest of a state is necessary to justify discrimination on the basis of sexual orientation. As we have been at pains to explain, the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.

It is unanimous. There doesn’t appear to be a stay, but it takes weeks for the mandate to issue in appeals courts.

Equality on Trial will have more updates soon.

Thanks to Equality Case Files for these filings

157 Comments

  • 1. AndresM11  |  September 4, 2014 at 12:21 pm

    Wow guys this is amazing!!! I've been reading this forum on a daily basis, but hadn't been able to create an account in order to post comments.

    Congratulations on this new victory! I think the oral arguments made it clear we were heading for a victory and our first unanimous circuit court rulling, but I'm astonished it came so fast!

  • 2. Ragavendran  |  September 4, 2014 at 12:23 pm

    Wow – just 9 days. He probably had most of this written before oral argument :)

  • 3. DaveM_OH  |  September 4, 2014 at 12:23 pm

    Amazingly fast.

  • 4. andrewofca  |  September 4, 2014 at 12:24 pm

    "[The state's rationale for the bans] is so full of holes that it cannot be taken seriously." Page 7

    :)

  • 5. Zack12  |  September 4, 2014 at 12:25 pm

    I knew they were going to move fast but not this fast!

  • 6. DaveM_OH  |  September 4, 2014 at 12:28 pm

    "Heterosexuals get drunk and pregnant, producing unwanted children; their reward is
    to be allowed to marry. Homosexual couples do not produceunwanted children; their reward is to be denied the right to marry. Go figure."

  • 7. Zack12  |  September 4, 2014 at 12:28 pm

    It's been well known that Posner will often look at briefs (as he showed during the hearing.)
    My guess is he read only a couple of the anti-gay ones and came to the conclusion pretty fast that the anti-side was full of crap.

  • 8. Zack12  |  September 4, 2014 at 12:34 pm

    A lot of bigots and the sky is falling people were talking about how Feldman wrote his option to Kennedy and how we should be worried that he will take note of Feldman's ruling.
    Posner is the most cited legal scholar of the 20th century and is NOT a bleeding heart in any way shape or form (he upheld voter id laws for one.)
    If the bigots think Kennedy is going to ignore Posner in favor of Feldman, they are fooling themselves.

  • 9. Ragavendran  |  September 4, 2014 at 12:40 pm

    "In its reply brief Indiana adopts Wisconsin’s democracy argument, adding that “homosexuals are politically powerful out of proportion to their numbers.” No evidence is presented by the state to support this contention. It is true that an increasing number of heterosexuals support same-sex marriage; otherwise 11 states would not have changed their laws to permit such marriage (the other 8 states that allow same-sex marriage do so as a result of judicial decisions in-validating the states’ bans). No inference of manipulation of the democratic process by homosexuals can be drawn, how-ever, any more than it could be inferred from the enactment of civil rights laws that African-Americans “are politically powerful out of proportion to their numbers.” It is to the credit of American voters that they do not support only laws that are in their palpable self-interest. They support laws punishing cruelty to animals, even though not a single animal has a vote."

  • 10. galen697  |  September 4, 2014 at 12:42 pm

    Certainly takes some of the sting out of yesterday. :)

  • 11. andrewofca  |  September 4, 2014 at 12:43 pm

    Some of the best Scalia trolling I've seen so far:

    "Baker was decided in 1972—42 years ago and the dark ages so far as litigation over discrimination against homosexuals is concerned. Subsequent decisions such as
    Romer v. Evans , 517 U.S. 620, 634–36 (1996); Lawrence v. Texas, 539 U.S. 558, 577–79 (2003), and United States v. Windsor are distinguishable from the present two cases but make clear that Baker is no longer authoritative. At least we think they’re distinguishable.
    But Justice Scalia, in a dissenting opinion in Lawrence , 539 U.S. at 586, joined by Chief Justice Rehnquist and Justice Thomas, thought not. He wrote that “principle and logic” would
    require the Court, given its decision in Lawrence , to hold that there is a constitutional right to same-sex marriage.Id . at 605"

  • 12. RnL2008  |  September 4, 2014 at 12:43 pm

    Boy, that was quick….makes yesterday news seem like a distant memory……YEAH!!!

  • 13. RemC_in_Chicago  |  September 4, 2014 at 12:45 pm

    Came out of a meeting to this news. WOW. We knew it might be fast but…wow. Can hardly wait to sit and read it for myself…

  • 14. cpnlsn88  |  September 4, 2014 at 12:48 pm

    A nice way to prepare the way for the 9th Circuit hearing on Monday, where of course, heightened scrutiny pertains.

  • 15. F_Young  |  September 4, 2014 at 12:48 pm

    So, can same-sex couples in Indiana and Wisconsin start getting married, like, tomorrow?

  • 16. RnL2008  |  September 4, 2014 at 12:50 pm

    If we are SOooooo damn powerful, why is it that we have to FIGHT for every right that should ALREADY be ours to exercise?

    Just saying…….ugh:(

  • 17. Rik_SD  |  September 4, 2014 at 12:50 pm

    no way will SCOTUS not stay the ruling

  • 18. ragefirewolf  |  September 4, 2014 at 12:50 pm

    WOOHOO!!

    Take that, Feldman!

  • 19. DaveM_OH  |  September 4, 2014 at 12:51 pm

    No. The 7CA has not lifted the stay pending appeal, they have not lifted the mandate, and WI AG Van Hollen has already vowed to appeal to SCOTUS, which will stay the mandate pending cert.

    That said, civilly disobedient clerks do exist and may issue licenses which may or may not be valid, just like we've seen in UT and CO.

  • 20. Ragavendran  |  September 4, 2014 at 12:53 pm

    Equal protection. Sexual orientation gets heightened scrutiny. So the Seventh joins the Ninth Circuit in setting this important precedent (in recent times)!

    "We’ll see that the governments of Indiana and Wisconsin have given us no reason to think they have a “reasonable basis” for forbidding same-sex marriage. And more than a reasonable basis is required because this is a case in which the challenged discrimination is, in the formula from the Beach case, “along suspect lines.” Discrimination by a state or the federal government against a minority, when based on an immutable characteristic of the members of that minority (most familiarly skin color and gender), and occurring against an historical background of discrimination against the persons who have that characteristic, makes the discriminatory law or policy constitutionally suspect."

    and

    "For completeness we note the ultimate convergence of our simplified four-step analysis with the more familiar, but also more complex, approach found in many cases. In SmithKline, the Ninth Circuit concluded, based on a reading of the Supreme Court’s decisions in Lawrence and Windsor, that statutes that discriminate on the basis of sexual orientation are subject to “heightened scrutiny”—and in doing so noted that Windsor, in invalidating the Defense of Marriage Act, had balanced the Act’s harms and offsetting benefits."

  • 21. DaveM_OH  |  September 4, 2014 at 12:56 pm

    Just as I said: Monroe Co. (location of Indiana University) Clerk has reportedly begun issuing licenses. https://twitter.com/govtracker/status/50761471005

  • 22. Ragavendran  |  September 4, 2014 at 12:58 pm

    In Wisconsin, a stay pending appeal to the Seventh Circuit was issued by the district court. And in Indiana, a similar stay was issued by the Seventh Circuit itself. Both stays will automatically expire when the mandate issues. I'm sure Indiana and Wisconsin will file a timely motion to stay the mandate and Posner will reluctantly issue the stay (and if he doesn't, the Supreme Court will). So it is highly unlikely that marriages will be legally allowed to take place any time soon.

  • 23. DoctorHeimlich  |  September 4, 2014 at 12:59 pm

    The speed of this ruling may well put pressure on Sutton. I don't want to get too hopeful that this ruling would make Sutton rethink a vote against us, but Sutton did once write about Judge Posner in the Michigan Law Review:

    I often look to him for insights in resolving difficult cases of my own, telling my clerks, “See if Posner has written anything on the topic.”

    Well, now he has. Read it.

  • 24. MichaelGrabow  |  September 4, 2014 at 12:59 pm

    "Go figure" killed me.

  • 25. MichaelGrabow  |  September 4, 2014 at 1:03 pm

    Excellent

  • 26. robbyinflorida  |  September 4, 2014 at 1:08 pm

    MY three 7's trump your one 5. Now I'm just waiting for the Brian Brown post.

  • 27. hopalongcassidy  |  September 4, 2014 at 1:12 pm

    I imagine we can safely assume he will read it. What he will do with it could conceivably involve post-defecation ablutions…

  • 28. mjnichol  |  September 4, 2014 at 1:20 pm

    "But at a deeper level, as we shall see, they are about the welfare of American children."

    Kennedy's going to like that line, based on his oral comments in the Prop8 case and in his decision in Windsor.
    Even odds that he will want to wait a little and take this case once it's before SCOTUS rather than the others.

  • 29. Zack12  |  September 4, 2014 at 1:21 pm

    I'm not holding my breath on Sutton but anything can happen.

  • 30. Mike_Baltimore  |  September 4, 2014 at 1:23 pm

    Please don't hold your breath for Brown's post. It might be bad for your health.

  • 31. franklinsewell  |  September 4, 2014 at 1:25 pm

    I love decisions like this – Basically, this discrimination is "irrational" and, therefore, "unconstitutional."

  • 32. RnL2008  |  September 4, 2014 at 1:26 pm

    Just from reading the first 10 pages of the ruling, you can tell that the Justices really took the time to research Homosexuality as well as the harm being caused by NOT being allowed the same right to marry that others have…….I'm certain that the next 30 pages will be well worth the read!!!

  • 33. Ragavendran  |  September 4, 2014 at 1:31 pm

    Is this what you're referring to? Just the opening paragraphs tell a lot about Sutton's reverence for Posner: http://www.michiganlawreview.org/assets/pdfs/108/

  • 34. Mike_Baltimore  |  September 4, 2014 at 1:33 pm

    Most were figuring this would be a quick decision (but most were not expecting it to be THIS quick).

    The quickness of the decision bodes well for a quick mandate, thus time for appeal to SCOTUS in time for a decision this term. And I'm sure SCOTUS will hold open a time for orals for at least one case, if not this specific case, especially since this case is actually more than one case (two states, plus the IN case was actually four in District Court), and deals with almost all the major questions that need resolution (ME within a state, recognition of ME legally performed in another state, adoption, etc.).

    This decision takes a LOT of the sting out of Feldman's decision of yesterday.

  • 35. DoctorHeimlich  |  September 4, 2014 at 1:35 pm

    That is indeed the article I found.

  • 36. davepCA  |  September 4, 2014 at 1:35 pm

    Oh yeah, that one just jumps off the page. Excellent.

  • 37. Randolph_Finder  |  September 4, 2014 at 1:37 pm

    Would they be forced to deny cert on Utah and Virginia in order to be able to wait for Indiana/Wisconsin? (Which would give ME to the 10th and the 4th)

  • 38. PaulK_VT  |  September 4, 2014 at 1:39 pm

    Posner's decision cites the work of a friend of mine, J Michael Bailey.

    At the bottom of page 9, Judge Posner:

    The leading scientific theories of the causes of homosexuality are genetic and neuro-endocrine theories, the latter being theories that sexual orientation is shaped by a fetus's exposure to certain hormones. see e.g., J Michael Bailey, “Bio-logical Perspectives on Sexual Orientation,” in Lesbian, Gay, and Bisexual Identities Over the Lifespan: Psychological Perspectives 102–30

    Congratulations Michael! And thanks for your most excellent research.

  • 39. davepCA  |  September 4, 2014 at 1:39 pm

    Ah, this is wonderful. Just finished reading the whole thing. There is some surprisingly 'homespun' language scattered throughout that makes it a rather entertaining read.

  • 40. mjnichol  |  September 4, 2014 at 1:45 pm

    No, SCOTUS can hold the petitions as long as they want without making a decision on them. So, they would probably be held in limbo until the chosen case is decided.

  • 41. Rik_SD  |  September 4, 2014 at 1:47 pm

    That opinion was an absolutely delightful read– more didactic in tone than most have been. He completely decimated the state arguments about child welfare using their own laws about cousins marrying against them and even found animus. Awesome ruling!

    He even trolls their grammar! <3

  • 42. Zack12  |  September 4, 2014 at 1:52 pm

    That is what they did with the various DOMA cases until they picked Edie's.

  • 43. franklinsewell  |  September 4, 2014 at 1:56 pm

    Yay! SmithKline, 9th Circuit! I love it!

    Posner is my new favorite appellate judge. "Oh, Come On."

  • 44. Randolph_Finder  |  September 4, 2014 at 1:57 pm

    They see me trollling….

  • 45. JayJonson  |  September 4, 2014 at 1:58 pm

    Posner's writing combines rigorous thought and colloquial expression. I've never read a legal opinion that does this. It is a brilliant example of his cost-benefit legal analysis, but he also grafts it onto, or translates it into, a more conventional equal protection analysis. I wonder if this approach is a means to accommodate the concerns of Judges Williams and Hamilton, who seemed to be leaning toward an unambiguous "heightened scrutiny" finding.

    The opinion brilliantly deconstructs the arguments put forward by the states, showing not only their inconsistencies and insincerities, but also exposing the concrete harms the states do to same-sex couples and their children.

    It is a wonderful antidote to the garbage spewed by Feldman. I think five members of the Supreme Court will find it altogether persuasive.

  • 46. franklinsewell  |  September 4, 2014 at 2:03 pm

    LOL. I think Brown and NOM are going to leave the Louisiana decision up as long as they can with no post about this or future pro-ME decisions.

  • 47. davepCA  |  September 4, 2014 at 2:09 pm

    Yeah, you must have noticed that "[sic]" in one of the quoted phrases, too, huh? I thought it added a nice touch : )

  • 48. RemC_in_Chicago  |  September 4, 2014 at 2:14 pm

    I loved this, as it is a point I've often wondered about from the opponents:

    "No one knows exactly how many Americans are homosexual. Estimates vary from about 1.5 percent to about 4 per-cent. The estimate for Wisconsin is 2.8 percent, which includes bisexual and transgendered persons. Gary J. Gates & Frank Newport, “LGBT Percentage Highest in D.C., Lowest in North Dakota,” Gallup (Feb. 15, 2013) …Given how small the percentage is, it is sufficiently implausible that allowing same-sex marriage would cause palpable harm to family, society, or civilization to require the state to tender evidence justifying its fears; it has provided none."

    Interesting how he quoted himself from the courtroom into this ruling…

  • 49. robbyinflorida  |  September 4, 2014 at 2:24 pm

    Did anyone notice that Brown never posted the Florida win(s)?

  • 50. Mike_Baltimore  |  September 4, 2014 at 2:29 pm

    Several of the cases were held until the decision came down in Windsor, then some were sent back to Appeals courts with instructions to decide the case in light of Windsor; and some were outright dismissed.

    SCOTUS can also decide to just hold onto cases, and decide them in future terms. It's not done often, but SCOTUS can do it.

  • 51. Ragavendran  |  September 4, 2014 at 2:29 pm

    I find this part in Page 7 a bit confusing… Can someone explain:

    for example, overinclusive in ignoring the effect of the ban on the children adopted by same-sex couples, under-inclusive in extending marriage rights to other non-procreative couples. But to say that a discriminatory policy is overinclusive is to say that the policy does more harm to the members of the discriminated-against group than necessary to attain the legitimate goals of the policy, and to say that the policy is underinclusive is to say that its exclusion of other, very similar groups is indicative of arbitrariness.

    Doesn't overinclusive mean that the government is including other opposite-sex couples who cannot procreate also into the group eligible for marriage? And underinclusive means that the government is not including same-sex couples with children who would be better off if married? Did Posner get it the other way round?

  • 52. RnL2008  |  September 4, 2014 at 2:29 pm

    If ANYONE thought that they would take down one lousy ruling from a bigoted Justice….then those folks must have gone without oxygen for awhile………NOM is going to sit back and keep throwing out the ruling by Judge Feldman as if it means ANYTHING, when in reality it will have NO bearing on the overall outcome of this WAR!!!

  • 53. GregInTN  |  September 4, 2014 at 2:34 pm

    I liked his comments on the "democratic process"…

    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 homosexuals 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.

  • 54. sfbob  |  September 4, 2014 at 2:35 pm

    Just when you think these decisions couldn't ever become more fun to read, along comes this one.

  • 55. Ragavendran  |  September 4, 2014 at 2:37 pm

    If Sutton is reading this, he should pay attention to this paragraph. This answers his question about why the courts are better than the democratic process to change hearts and minds.

    The harm to homosexuals (and, as we’ll emphasize, to their adopted children) of being denied the right to marry is considerable. Marriage confers respectability on a sexual relationship; to exclude a couple from marriage is thus to deny it a coveted status. Because homosexuality is not a voluntary condition and homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world, the disparagement of their sexual orientation, implicit in the denial of marriage rights to same-sex couples, is a source of continuing pain to the homosexual community. Not that allowing same-sex marriage will change in the short run the negative views that many Americans hold of same-sex marriage. But it will enhance the status of these marriages in the eyes of other Americans, and in the long run it may convert some of the opponents of such marriage by demonstrating that homosexual married couples are in essential respects, notably in the care of their adopted children, like other married couples.

  • 56. Eric  |  September 4, 2014 at 2:38 pm

    It will be interesting to see if the 7th does issue a stay. If they really stand behind their decision, they will make SCOTUS issue the stay.

  • 57. Ragavendran  |  September 4, 2014 at 2:41 pm

    Oh, is he saying that the ban is overinclusive by including same-sex couples with children into the excluded group and underinclusive because it doesn't include sterile couples into the excluded group? Gosh – my head is spinning trying to understand this part.

  • 58. Jen_in_MI  |  September 4, 2014 at 2:41 pm

    Because – say it with me, everyone – "These are not the arguments of serious people." LOL!!!

  • 59. Ragavendran  |  September 4, 2014 at 2:44 pm

    How come there isn't a T-Shirt yet with those words??! I would want to buy one of those and wear it to the Ninth Circuit on Monday!

  • 60. KahuBill  |  September 4, 2014 at 2:45 pm

    Let's not forget the bits about Justices Scalia, Alito and Thomas. I appreciated the spanking of the attorneys that concluded the opinion.

  • 61. micha1976  |  September 4, 2014 at 2:49 pm

    In discussing the WI ban, it comes back to the question of first-cousin-marriages in IN:

    "Indiana’s marriage law, as we know, authorizes first-cousin marriages if both cousins are at least 65 years old. But — and here’s the kicker — Indiana apparently will as a matter of comity recognize any marriage lawful where contracted, including therefore (as an Indiana court has held) marriages of first cousins contracted in Tennessee, a state that places no restrictions on such marriages."

    Who would have thought we would read about "a kicker" in an appeals court ruling…

  • 62. Jen_in_MI  |  September 4, 2014 at 2:51 pm

    Another slow clap for your creativity, sir. May I borrow that phrase (with attribution, of course)? :-)

  • 63. Randolph_Finder  |  September 4, 2014 at 2:53 pm

    Spanking is kind compared to the number of new holes that the attorneys for the states had bodily fluids leaking from when they walked out of the courtroom.

  • 64. sfbob  |  September 4, 2014 at 2:54 pm

    Did anyone catch this little tip of the hat to Judge Heyburn?

    The state should want homosexual couples who adopt children—as, to repeat, they are permitted to do—to be married, if it is serious in arguing that the only governmental interest in marriage derives from the problem of accidental births. (We doubt that it is serious.)

  • 65. Ragavendran  |  September 4, 2014 at 2:59 pm

    Also this, echoing his comments on the "absurdity" at oral argument:

    Indiana has thus invented an insidious form of discrimination: favoring first cousins, provided they are not of the same sex, over homosexuals. Elderly first cousins are permit-ted to marry because they can’t produce children; homosexuals are forbidden to marry because they can’t produce children. The state’s argument that a marriage of first cousins who are past child-bearing age provides a “model [of] family life for younger, potentially procreative men and women” is impossible to take seriously.

  • 66. DoctorHeimlich  |  September 4, 2014 at 3:01 pm

    I feel like Posner's opinion will be very well received by Justice Kennedy. When you read Windsor, for example, it's full of lofty principle but rather short on actual legal analysis. And ultimately, both that opinion and the questions Kennedy asked at oral arguments in Windsor and Hollingsworth really probed a lot into harm and stigma.

    So compare Posner's opinion to the ones from the Fourth and Tenth Circuits. (And indeed, any of the lower federal court opinions.) It's certainly well-reasoned, and it suffers no fools or foolish arguments. But it's rather short on actual legalese until the very end, and it focuses the entire time on harm and stigma.

    I don't think that Kennedy's vote is really all that in doubt. But to whatever degree it needs shoring up, this opinion should do it.

  • 67. davepCA  |  September 4, 2014 at 3:03 pm

    I would like a T-shirt like that too, but this is a good place to point out that we should NOT wear any clothing that contains any graphics or text that might even possibly be considered 'political' or relating to the issues in the case when attending the 9th circuit hearing on Monday. No rainbow symbols, equality symbols, Harvey Milk quotes, etc. You would likely be denied entrance to the court room.

  • 68. Ragavendran  |  September 4, 2014 at 3:08 pm

    I thought of that too, but just the words "These are not the arguments of serious people," (without any reference to where I'm quoting from) can't be construed as political, right? It definitely does NOT reveal anything about which side I'm supporting, unlike a rainbow symbol, equality symbol, etc. For all anyone knows, I might be using those words to support the opponents!

  • 69. Jen_in_MI  |  September 4, 2014 at 3:09 pm

    I knew Posner would never pass up the opportunity to write the opinion for these cases, but my wildest expectations were exceeded by the rhetorical genius exhibited in this ruling. It is, indeed, a thing of beauty to be enjoyed and quoted from forever. Take that, ideologue Feldman!

  • 70. davepCA  |  September 4, 2014 at 3:12 pm

    Yup, you got it. Ban is over-inclusive because it harms children, and harming these citizens doesn't do anything that aligns with even what they CLAIM to be trying to achieve with the ban, and under-inclusive because the ban doesn't affect or include other citizens (other non-procreative couples) who, based on the claimed reasons for the ban, ought to also be affected by the ban in the same way as same sex couples. These illustrate that the ban is not rationally related to, or is at the very least ill-matched to, the claimed purposes for the ban, which calls into question whether those claims are, in fact, the real reason the ban was enacted.

  • 71. davepCA  |  September 4, 2014 at 3:17 pm

    I believe the problem there is that Sutton doesn't view that result as something that ought to be accomplished. He thinks society ought to hold moral views opposing homosexuality and should not view gay citizens as deserving of equal rights.

  • 72. davepCA  |  September 4, 2014 at 3:20 pm

    It would be up to the discretion of the guard at the entrance. They have absolute control over such matters and there would be no opportunity to plead your case if they questioned it. I sure wouldn't want to chance it.

  • 73. Corey_from_MD  |  September 4, 2014 at 3:21 pm

    Yesterday Brian Brown swiftly said "the house of cards is collapsing" on marriage equality supporters after the Louisiana ruling but today he is calling for a SOS after the anvil fell down on his head.

  • 74. Zack12  |  September 4, 2014 at 3:24 pm

    I don't know if he feels that way but he does think that whatever group it is, whether it's same sex couples, blacks, the disabled etc, if states want to pass laws that affect these groups in negative ways, it is their right and if these groups don't like it, they need to either elect legislators that think otherwise or appeal to the public until they decide the group in question deserves these rights.
    It's absurd thinking for a judge but sadly, the Republicans have done a great job on getting young judges like Sutton on the bench for three to four decades.
    Only in the past year and a half have the Democrats started to catch up.

  • 75. brooklyn11217  |  September 4, 2014 at 3:33 pm

    Indiana AG says he will ask SCOTUS for a stay:
    http://www.elkharttruth.com/news/indiana/2014/09/

  • 76. daulphin  |  September 4, 2014 at 3:33 pm

    I caught that and loved it. This one got me as well:

    "Does Wisconsin want to push homosexuals to marry persons of the opposite sex because opposite-sex marriage is “optimal”? Does it think that allowing same-sex marriage will cause heterosex- uals to convert to homosexuality? Efforts to convert homo- sexuals to heterosexuality have been a bust; is the opposite conversion more feasible?"

  • 77. mjnichol  |  September 4, 2014 at 3:37 pm

    Right idea in your follow up, but to summarize, there are two groups:
    A) couples with children
    B) couples without children

    Couples fall in to A or B regardless of their genders. The law is overinclusive, due to the same-sex couples in group A, and underinclusive due to the opposite-sex couples in group B.

  • 78. Ragavendran  |  September 4, 2014 at 3:45 pm

    Wrong court. He should be denied (without prejudice, though) by SCOTUS. Unless extraordinary circumstances warrant it, the party moving for a stay must first ask the court that issued the judgment for a stay first. Only when that court denies it, it can ask the next higher court and so on. In this case, Indiana must first ask the Seventh Circuit to stay its mandate. There is not an extraordinary urgency, because the mandate is (ordinarily) not scheduled to issue until 21 days from now. If the Seventh refuses, like the Fourth did, only then can he properly ask the Supreme Court.

    As for Wisconsin, I think the district court stay remains in place until time for appealing further has expired, or exhaustion of all appeals, meaning that the Seventh Circuit need not intervene.

  • 79. sfbob  |  September 4, 2014 at 3:48 pm

    Interesting article. One thing of note that might be overlooked is that Posner is everything the Federalists despise. See, for example, page 860 of the article (don't worry, it doesn't begin with page 1 but rather with page 859) and Sutton notes Posner's contention that there is an intrinsic political dimension to the work of the federal judiciary. So much for John Roberts' insistence that justices should "just call balls and strikes."

  • 80. Retired_Lawyer  |  September 4, 2014 at 3:52 pm

    It is difficult to imagine how this opinion from Judge Posner could be any better, or any faster. I have been reading Judge Posner's writings since I first came across his scholarship in the early 1970s, but this trumps everything he has done before. Outstanding! We can only imagine how influential this opinion will be

  • 81. Zack12  |  September 4, 2014 at 3:58 pm

    Posner was one of the last conservative judges to get on the bench that didn't belong to the Federalist Society.
    Now it is virtually mandatory that any judge nominated by a Republican when the Republicans control the White House and Senate belong to that vile group.
    Sad to say, they have been successful at stacking the courts, from the Supreme on down.
    That is why it is so important a Democrat win in 2016. It will be one of the only ways to undo some of the damage done by them.

  • 82. robbyinflorida  |  September 4, 2014 at 4:00 pm

    If the LA case is the one Brian Brown is betting the house on than Susan and the kids will be left homeless.

  • 83. davepCA  |  September 4, 2014 at 4:01 pm

    shhh! They might hear you! : )

  • 84. LK2013  |  September 4, 2014 at 4:03 pm

    Fabulous news! Lightning fast! What a wonderful surprise today, and yes, it does dilute the bad taste of yesterday's (soon to be forgotten) travesty by Judge Feldman.

    I probably won't be able to read this in its entirety until tomorrow … and I anticipate that reading with delight.

    Thank you, 7th Circuit and Judge Posner!

  • 85. DACiowan  |  September 4, 2014 at 4:11 pm

    So I'm on night shift, and checking to see any develop–

    WAHOO!!!

  • 86. cpnlsn88  |  September 4, 2014 at 4:26 pm

    Just another reminder about Posner. Yes he is a brilliant legal thinker and commentator but don't forget he is quoted by the 8th circuit in their ruling against us a few years back. This opinion will do no harm whatever in helping to overturn that precedent.

  • 87. Zack12  |  September 4, 2014 at 4:40 pm

    I do remember that but with or without that quote, the 8th circuit was going to go against us.
    Sad to say but our side jumped the gun with that one, 2005/6 was simply too early for a lawsuit like that.

  • 88. JayJonson  |  September 4, 2014 at 4:50 pm

    Yes. Interesting that Posner cites SmithKline even though his own ruling does not require heightened scrutiny.

  • 89. VAis4AllLovers  |  September 4, 2014 at 4:56 pm

    I knew Gary Gates in Pittsburgh, one of the best doing work on gay demographics. Way to go Gary!

  • 90. hopalongcassidy  |  September 4, 2014 at 5:06 pm

    You certainly may. Attribution is optional. 😀

  • 91. hopalongcassidy  |  September 4, 2014 at 5:09 pm

    One could always carry another shirt jelly-roll fashion, just in case, nu?

  • 92. davepCA  |  September 4, 2014 at 5:15 pm

    Yes. You would have to be prepared to relinquish the 'offending' T-shirt at the entrance. They may not let you bring it in, even if you're not wearing it. (Of course you may get lucky and they may say nothing about it).

  • 93. Zack12  |  September 4, 2014 at 5:23 pm

    I am glad we got a win out of this.
    I am fully expecting a 2-1 ruling against us at the 6th.

  • 94. jdw_karasu  |  September 4, 2014 at 5:38 pm

    Front Side: Go Figure

    Back Side: These are not the arguments of serious people

    Equals perfect shirt.

    Though when this is all over, someone needs to make a shirt with the key quote or two quotes from Judge Walker's Opinion/Findings of Fact. As good as some of the recent ones have been, that still remains Number-One-The-Best for me just because he nailed it so completely: facts, reasoning, the Law, moving without trying to. It just can't be topped for me. :)

  • 95. Ragavendran  |  September 4, 2014 at 5:47 pm

    To clarify, he clearly said early on that laws that discriminate based on sexual orientation are subject to heightened scrutiny, so it is now the law of the Seventh Circuit – which is amazing and important to take note, as it will have implications well beyond the subject of marriage. This is something the Fourth and Tenth refused to do.

    But you're right – ultimately, after saying that heightened scrutiny applies, Posner struck down the bans as lacking even a rational basis.

  • 96. jdw_karasu  |  September 4, 2014 at 5:52 pm

    Of course the Indy AG would screw up like this. They're not Serious People. :)

  • 97. Margo Schulter  |  September 4, 2014 at 6:08 pm

    An interesting detail is that Judge Posner borrowed a lot of material about the evolutionary theories about homosexuality, and also the history of past discrimination, from his 2012 article that’s been cited and linked to here from time to time.

    I found it delightfully readable, with colloquial indeed a great description. And it may appeal to Justice Kennedy’s interest in a less “tiered” and more equable approach to equal protection and scrutiny.

  • 98. OctaA  |  September 4, 2014 at 6:10 pm

    So does this now make it the 2nd, 7th and 9th circuits which have heighted scrutiny for laws that discriminate on sexual orientation?

    And is this now fully binding on the 7th or might there be a chance that the heightened scrutiny gets overturned en banc?

    Possibly by a sua sponte call if neither Indiana or Wisconsin opts for an en banc appeal.

  • 99. Margo Schulter  |  September 4, 2014 at 6:14 pm

    What I get from Judge Posner is a kind of ingenious hybrid between traditional strict or intermediate scrutiny applied to certain recognized classes (race, gender, illegitimacy), and a broader “suspect” category concept a bit like animus: has this group been the target of antipathy or prejudice, although it might not be suspect or quasi-suspect in a traditional sense.

    A good example is Cleburne, involving zoning to exclude a home for people with developmental disabilities. Since such disabilities do affect a person’s ability to contribute to society, the category is not suspect or quasi-suspect in the usual sense. But since people with intellectual disabilities do face prejudice, it’s appropriate to weigh costs and benefits — and, if I have Judge Posner’s meaning correct, more closely than we do for some economic regulation which doesn’t bring such prejudice into play.

  • 100. jdw_karasu  |  September 4, 2014 at 6:22 pm

    I think this puts pressure on Sutton to not issue a rule upholding bans. That doesn't mean that he's going to find in favor of the Good Guys. I still think he'd like to slow walk a ruling so he can just let SCOTUS take it up, and that the Dem judge would be fine with that. But…

    I think this is a one-two whammy:

    Feldman's ruling was shambolic, and rather instantly got seen as someone clawing and scratching to keep what SCOTUS is going to strike down. While the bigots were happy with the ruling, everyone else saw it for what it was. I don't think Sutton wants to be on that side.

    Then today with Posner, in such strong writing. I don't think Sutton was to be between a triple set of rocks: GOP Judge Friedman below, GOP Judge Posner to the side, and GOP Judge Kennedy dropping one from above when SCOTUS finally takes it up.

  • 101. DrPatrick1  |  September 4, 2014 at 6:32 pm

    See page 5, rule 4 of his stated 4 rule analysis of how to assess an equal protection challenge. Is the ban over/under inclusive.

  • 102. robbyinflorida  |  September 4, 2014 at 6:43 pm

    I couldn't find the SOS thing. Where is it? Tks

  • 103. Zack12  |  September 4, 2014 at 6:55 pm

    An En Banc request is certainly possible but I imagine they will simply let the Supreme Court handle it.

  • 104. RemC_in_Chicago  |  September 4, 2014 at 7:01 pm

    Yep, among my favorites.

  • 105. andrewofca  |  September 4, 2014 at 7:16 pm

    I recently saw a t-shirt that said "I only read the constitution for the articles".

    I think they guy wearing it was a lawyer 😉

  • 106. TimATLGA  |  September 4, 2014 at 7:22 pm

    Would a loss at the 6th though, creating the first post-Windsor circuit split, make it more likely that SCOTUS will take one of the marriage equality cases?

  • 107. Zack12  |  September 4, 2014 at 8:01 pm

    Yes it would.
    It's highly likely that they will step in but a circuit split will make it even more so.

  • 108. TimATLGA  |  September 4, 2014 at 8:07 pm

    In light of how quickly the 7th ruled, any predictions on how long it'll take the 9th?

  • 109. Zack12  |  September 4, 2014 at 8:14 pm

    If it's another 3-0 ruling, it wouldn't shock me to see a ruling before the end of October if not before that.

  • 110. frigens  |  September 4, 2014 at 9:24 pm

    Actually Second Circuit also apply intermediate scrutiny on the classification base on sexual orientation.

    But sadly this ruling is not binding until mandate is issued, so it can still be overturned by an en banc court.

  • 111. RnL2008  |  September 4, 2014 at 9:26 pm

    Here are some pages from the ruling I think are important to read….Pages 15, 17-19, 21, 23 and 24!!!

  • 112. Steve27516  |  September 4, 2014 at 9:32 pm

    Ragavendran and friends:

    I'm so envious of those of you who will be gathering in SF for Monday's arguments. I wish I could meet all of you. I've learned so much from you. I'm truly grateful for the illumination of your posts on EOT.

    Now, a question. Ragavendran, you wrote: "As for Wisconsin, I think the district court stay remains in place until time for appealing further has expired, or exhaustion of all appeals, meaning that the Seventh Circuit need not intervene."

    I'm puzzled by the implications of this. As I'm trying to understand it, it seems that this would imply that District Judge Barbara Crabb in Wisconsin issued a stay that was binding not only on her own court's opinion but also on a then-future ruling of the Seventh Circuit. How could that be? Wouldn't a stay at this juncture have to come from either the Seventh itself or SCOTUS?

    Thank you for your edifying posts!

  • 113. RnL2008  |  September 4, 2014 at 10:05 pm

    All I have to say after reading the entire ruling is WOW, can we nominate Justice Posner for SCOTUS….please:-)

  • 114. Ragavendran  |  September 4, 2014 at 10:06 pm

    Thanks a lot, Steve! I share your admiration for my fellow commentators here – they've taught me so much in the past nine months that I've been on here :)

    This is my interpretation of the district court's order regarding the stay. As I keep repeating here periodically (and it is important for me do so), I'm not a lawyer, so the legal gurus here should please correct me if I'm wrong.

    Judge Crabb wrote:

    FURTHER IT IS ORDERED that defendants’ motion to stay all relief in this case is GRANTED. The injunction and the declaration shall take effect after the conclusion of any appeals or after the expiration of the deadline for filing an appeal, whichever is later.

    Now, the key (and arguably ambiguous) phrase here is "after the conclusion of any appeals." I interpret it as meaning all further appeals all the way to the Supreme Court. (I guess it could have alternatively meant all further appeals filed by one or more defendants in this case to the Seventh Circuit – in this case it turned out there was just one collective appeal.)

    Therefore, I think the Seventh Circuit need not issue a stay, as that would be redundant. The misunderstanding here is that Crabb's stay is binding on the Seventh Circuit. It is not. The Seventh Circuit (or the Supreme Court) is free to overrule Crabb and lift her stay any second they want to.

    In fact, I'm unsure what the issuance of a mandate by the Seventh Circuit would now mean. Does the mandate automatically lift the lower court's stay? I don't know. (It would, under the alternate interpretation.) And now that I think about it, perhaps my interpretation of her stay order is actually wrong… I've never heard of a district court ordering an extended stay pending all future and higher appeals!

    Anyways, apologies for the ramble. Maybe I confused more than clarified!

  • 115. SeattleRobin  |  September 4, 2014 at 10:48 pm

    What a great day.

    A judge in Ohio issued a preliminary injunction against the state's restrictive voting laws. I haven't had a chance to read it yet, but voting laws are critical for all oppressed groups. http://www.motherjones.com/documents/1283691-072-

    Posner's ruling. Wow, was that fast! Yipee!

    And the Seahawks won the NFL season opener. (Couldn't resist!)

  • 116. andrewofca  |  September 4, 2014 at 11:18 pm

    Zack, quit toying with our hopes 😉

  • 117. andrewofca  |  September 4, 2014 at 11:23 pm

    I wonder how much of Posner's writing is actually his, and how much is his clerks. Either way, I love his style – it's down-to-earth and thoroughly logical.

  • 118. Jen_in_MI  |  September 5, 2014 at 12:44 am

    I am baffled as to how Sutton and Cook could look at the trial record in DeBoer v. Snyder and ignore all the findings of fact to uphold the bans, but IANAL.

  • 119. Terence  |  September 5, 2014 at 12:49 am

    Same – sex weddings in Florida?

    "Florida Attorney General Pam Bondi did not appeal a Broward ruling that Florida’s gay marriage ban is unconstitutional, paving the way for same-sex weddings in and around Fort Lauderdale"
    http://www.miamiherald.com/2014/09/04/4328404/pam

    This is the case where plaintiff was asking for the right to divorce, but the judge's ruling included the conclusion that the marriage ban was unconstitutional. The divorce hearing will go ahead – but can marriage licences now be issued in Broward county?

    Bondi has also not appealed in Palm Beach county:

    "On Aug. 5, a day after Cohen’s ruling, Palm Beach County Circuit Judge Diana Lewis ordered W. Jason Simpson should be personal representative in the estate of his husband, Frank Bangor, who died March 14. "

    Her office says she has not appealed in these counties, because they"were not parties to those cases. – but she has appealed in Monroe and Miami – Dade counties. Does this mean that ME has come to two counties in Florida, but not the rest of the state?

  • 120. ebohlman  |  September 5, 2014 at 1:38 am

    I'm pretty sure the Palm Beach case was an as-applied challenge, so the ruling's effect is limited to people in Simpson's position, i.e. people can personally represent their deceased same-sex spouses in probate proceedings.

  • 121. montezuma58  |  September 5, 2014 at 1:48 am

    An appellate court in Florida has asked the state Supreme Court to take up the question on the marriage ban. What that means as far as the status of any of the state cases I'm not sure. I would think that if Bondi were a serious person she would have filed an appeal in order to protect her position.

  • 122. ebohlman  |  September 5, 2014 at 1:52 am

    The 9th Circuit is actually pretty quick about issuing decisions after oral arguments; I think about 4-6 weeks is typical. That's pretty much the only sentence that can contain both "9th Circuit" and "quick" but not "not".

  • 123. F_Young  |  September 5, 2014 at 3:21 am

    32 States Ask Supreme Court to Settle Gay Marriage
    http://abcnews.go.com/US/wireStory/massachusetts-

  • 124. RQO  |  September 5, 2014 at 4:50 am

    Like your analysis, jdw. Scylla, Charybdis, and Common Sense – rocks big enough to sink any reputation. Someone correct me if I'm wrong, but are all the dissenting federal judges to date both old & Roman Catholic (plus the Nevada Mormon)? (And yes I am highly aware a majority of US Catholics are pro-ME.).

  • 125. RemC_in_Chicago  |  September 5, 2014 at 5:13 am

    I didn't! That's an interesting observation. Thanks for making it!

  • 126. RemC_in_Chicago  |  September 5, 2014 at 5:19 am

    Hmmmm….Maybe someone should send Feldman an annotated copy of Posner's ruling.

  • 127. DaveM_OH  |  September 5, 2014 at 6:09 am

    MA's brief is here: http://www.mass.gov/ago/docs/press/2014/marriage-

  • 128. Indiana, Wisconsin Marria&hellip  |  September 5, 2014 at 6:11 am

    […] Equality on Trial reports: […]

  • 129. FilbertB  |  September 5, 2014 at 6:16 am

    Hi!
    I have read in various sources that Posner is remarkably prolific, writing all of his material. In an interview he discusses his prodigious output. I will see if I can find that link. I will add it here.
    In reading this ruling I had the clear sense of Posner with his tendency of brilliant musings rather like a stream of consciousness, and clear grasp of the law -and his own insistence on empirical and economic issues as it relates to the law. The colloquialisms were pure Posner, and the issues raised in his ruling mirrored the questioning in oral arguments.
    Now I suspect he certainly had clerks proofing his ruling, but there was nothing labored about the writing style -in reading it it seemed to me directly from his pen.
    It is interesting to read the various rulings from the respective District court judges and the appellate court rulings. I have the sense that I can have a window to each judge's personal style, personality.

  • 130. JayJonson  |  September 5, 2014 at 6:57 am

    Yes, I am sure that only Posner could have written this opinion. No doubt his clerks contributed to the research and perhaps outlined some of the arguments, but this is not the style of either a committee or a conventionally-trained attorney.

    I suspect that Judges Williams and Hamilton insisted that he include the more traditional elements of equal protection analysis and heightened scrutiny, which contributes to the blend of his patented cost-benefit utilitarianism with more traditional elements. But his blunt, informal prose, peppered with slang and contractions, is his very personal expression.

  • 131. montezuma58  |  September 5, 2014 at 6:59 am

    I read through the ruling last night. I kept expecting Posner to write "You serious Clark?" after any statements of the opposition's position.

  • 132. JayJonson  |  September 5, 2014 at 7:03 am

    If I remember correction from a previous discussion on this board, rulings by county judges that strike down state laws as unconstitutional are automatically stayed pending a ruling from an appellate court.

  • 133. JayJonson  |  September 5, 2014 at 7:43 am

    Wonderful editorial in the New York Times about Judge Posner's decision: http://www.nytimes.com/2014/09/05/opinion/a-blunt

  • 134. BillinNO  |  September 5, 2014 at 7:56 am

    The folks up at the 7th Cir Ct of Appeals could sure teach the folks at the 9th Cir Ct of Appeals a thing or two about the timely rendering of justice.

  • 135. ragefirewolf  |  September 5, 2014 at 8:03 am

    ^ This. This is excellent. A majority of states have asked for SCOTUS review. This only strengthens the possibility of them granting certiorari.

  • 136. ragefirewolf  |  September 5, 2014 at 8:07 am

    Agreed, however, the 9th Circuit's docket is surely much busier than the 7th's by both the number of states and the very large population difference.

  • 137. sfbob  |  September 5, 2014 at 9:02 am

    My assumption is that a lower court's stay would only cover that court's own ruling, but I'm not a lawyer.

  • 138. sfbob  |  September 5, 2014 at 9:10 am

    We'd like to think that judges are rational individual who look at and weigh all the evidence and come to their conclusions based on logic. But all it takes is a gander at Feldman's idiotic, ideologically-drive spiel to see that such isn't the case. And the truth is that when you look back at past rulings, those are just as likely to be arrived at based on prejudice as any issued by today's band of ideologues. The lower court ruling that preceded Loving vs Virginia–extolling "the almighty's placing the different races on different continents" to support a conclusion upholding anti-miscegenation laws–is a classic example of that.

  • 139. sfbob  |  September 5, 2014 at 9:13 am

    I believe the rule in Florida is that county court rulings are automatically stayed only in the event they are appealed.

  • 140. sfbob  |  September 5, 2014 at 9:14 am

    As noted above, the Ninth is particularly slow when it comes to scheduling but reasonably prompt about issuing rulings following a hearing.

  • 141. ebohlman  |  September 5, 2014 at 10:29 am

    BTW, the actual original phrasing is "These arguments are not those of serious people."

  • 142. jdw_karasu  |  September 5, 2014 at 10:32 am

    Broken record on this, but I fully expect Nothing prior to SCOTUS taking it up. Just don't think Sutton has the desire to rule against ME knowing that the issue is going to be taken up by SCOTUS within a month or so. There is no rule focusing him to make a decision soon.

  • 143. Zack12  |  September 5, 2014 at 11:00 am

    Indeed, one can simply look at the Windsor case in the 2nd circuit for proof of that.
    Dennis Jacobs, a conservative jurist appointed by George Bush Sr wrote the majority option striking down DOMA while Chester Straub, a Democrat appointed by Clinton wanted DOMA upheld.
    You read his dissent and it basically reads like Feldman's, sans references to polygomy etc.
    I have a feeling Sutton and Cook upholding the bans will likely read the same way.
    Bottom line, some judges simply don't like us and won't care any court rulings.
    We've just been lucky that bigots like Feldman have been in the minority on the cases we have heard so far.

  • 144. StraightDave  |  September 5, 2014 at 11:28 am

    "Colorado's brief argued that … without a Supreme Court decision, states defending bans could be liable for huge legal bills from future lawsuits if they are overturned. "

    In other words, please stop me from foolishly, and voluntarily, spending tons of money on a lost cause because I can't stop myself.
    Cry me an effin river. It's your choice. Stupidity costs $$.

    "Colorado was joined by Alabama, Alaska, Arizona, Georgia, Idaho, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, West Virginia and Wisconsin."

    Why CO would want to sleep in that bed is beyond me. The authors were the CO Solicitor General and his asst, presumably underlings of the AG.

  • 145. StraightDave  |  September 5, 2014 at 12:01 pm

    I expect the 6th to get thoroughly raked over the coals by most mainstream media, in the event they follow their worst instincts. A very strong majority of the country can see the writing on the wall and have come to terms with it, some more reluctantly than others. The 6th would appear quite out of step in mid-2014.

    It's one thing for a solitary LA district judge to blow a gasket – we half expected that. It's quite a bigger deal for a more-north-than-south circuit court 2-1 majority to do the same. (though admittedly, the 6th borders both Canada and MS).

    I have little hope for Sutton unless he reads the well-respected Posner's opinion and suddenly pulls a Kennedy-esque U-turn http://www.law.yale.edu/news/15799.htm

  • 146. andrewofca  |  September 5, 2014 at 12:20 pm

    Yea, it does seem. stylistically, consistent with Posner's style during oral arguments.

    I'm reading this book, "In Chambers" that discusses the relationships between various SCOTUS justices throughout history, and their clerks. Great read if you're interested:
    http://www.amazon.com/In-Chambers-Justices-Consti

  • 147. JayJonson  |  September 5, 2014 at 12:28 pm

    Yes, that seems to be correct. JoeMyGod has a post that says the Broward County Clerk of Court is researching whether he can issue marriage licenses. Apparently, the request for a divorce that was at issue in the case has been granted. Now the question is whether the Clerk will decide to begin issuing marriage licenses. Broward County is Florida's second largest county and is believed to have the most same-sex couples of any county in the state.

  • 148. GregInTN  |  September 5, 2014 at 1:50 pm

    The Brian Brown post is now on nomblog.com under the title "A Major Victory". Funny he didn't preface Posner's name with the President who appointed him.

  • 149. KahuBill  |  September 5, 2014 at 2:35 pm

    I don't envy Judge Sutton as he writes the opinion of his panel of the Sixth Circuit Court. Judge Posner's opinion seems to really put him to the test. He can drink more of the Federalist Society Kool-Aid and follow Judge Feldman to wherever he'll be consigned by history or, well, assign the opinion to Judge Cook. In any event if the Sixth rules against us, I hope Judge Daughtrey will write a dissent inspired by Judge Posner

  • 150. jjcpelayojr  |  September 5, 2014 at 5:51 pm

    What I'm a bit bummed about is Posner side-stepped addressing our contention that marriage is a fundamental right. Or did he address that further down in his opinion?

  • 151. ebohlman  |  September 5, 2014 at 10:01 pm

    He indicated that he didn't need to address it given that he could strike down the bans on equal protection alone. Since the rulings from the 10th and 4th were based on fundamental rights, that's not really a problem; both theories as to why bans are unconstitutional need to be before the SCOTUS (the 9th is expected to rule on grounds similar to the 7th) and it makes sense to present them in distinct cases.

  • 152. SeattleRobin  |  September 5, 2014 at 11:15 pm

    During oral arguments Posner was extremely sceptical of the fundamental right argument, and the lawyers for our side did a really crappy job of supporting the argument.

  • 153. SFExPat  |  September 6, 2014 at 6:34 am

    Grr-rrrrr. Packer fan here. But not a Seahawk anti-fan. After all, WA state has marriage equality and WI is still in legal limbo.

    Regards,
    Jake
    PHX

  • 154. Mike_Baltimore  |  September 6, 2014 at 1:43 pm

    I'm sure if any clerk tries to issue marriage licenses, someone (NOM, Bondi, another clerk, or some other bigot) will go to court to stop the issuance of licenses. Whether that helps or hurts (in terms of hastening or slowing ME in Florida) is uncertain. If it goes to a state Appeals Court, it very well could slow down the process unless the state SC steps in. And if the state SC steps in, would it slow down the current cases in or headed to the state SC?

    And then there's the Federal Court system. Would it help or hurt us? After all, a District judge has ruled in our favor, but the case will be appealed to the 11th Circuit (or so Bondi has told us). Will someone (the 11th CA or SCOTUS) put a stay on that decision? Even with a stay, will Florida have, or not have, ME?

  • 155. Mike_Baltimore  |  September 6, 2014 at 1:53 pm

    Indiana has a system that allows private attorneys to be 'part-time' or 'substitute' judges (I'm not sure how they are chosen).

    The lead attorney defending Robert Montgomery Knight in his failed suit against Indiana University for firing without cause was one such 'substitute' judge in Lake County. He is extremely smart (in certain areas), but extremely biased, too. And not biased in our favor.

  • 156. jjcpelayojr  |  September 6, 2014 at 2:33 pm

    Well, I can hope that the 5th Circuit takes up the issue of whether marriage is a fundamental right as we'll likely see parties in ME trials within that circuit appeal all the way to SCOTUS because doesn't Article 2 of DOMA leave states a trump card to fall back on since, if I recall correctly, there's only one state challenging it?

  • 157. Equality On TrialIndiana &hellip  |  September 9, 2014 at 9:22 am

    […] Indiana officials are asking the Supreme Court to take up the Seventh Circuit’s opinion, written by Judge Richard Posner just days […]

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