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Three-judge panel announced in Seventh Circuit cases challenging Wisconsin, Indiana same-sex marriage bans

LGBT Legal Cases Marriage equality Marriage Equality Trials

The Seventh Circuit Court of Appeals has announced its three-judge panel that will hear arguments this morning in same-sex marriage cases from Indiana and Wisconsin.

The judges on the panel are Richard Posner (nominated by Reagan), Ann Claire Williams (nominated by Reagan to district court, Clinton to Seventh Circuit), and David Hamilton (nominated by Obama.) Posner has written about same-sex marriage before, among other topics.

The briefs in the Indiana cases can be read here. The briefs in the Wisconsin case can be read here.

Arguments in the cases begin at 9:30AM Central.

Audio from the arguments will be posted on the Seventh Circuit website sometime today.

EqualityOnTrial isn’t attending the arguments, but we’ll have coverage throughout the day based on audio and reports from inside the courtroom.

Thanks to Equality Case Files for these filings

80 Comments

  • 1. Dann3377  |  August 26, 2014 at 6:25 am

    Fingers crossed!

  • 2. Corey_from_MD  |  August 26, 2014 at 8:04 am

    Mine are too but I am willing to go out on a limb and say they will rule 2-1 or 3-0 in favor of marriage equality but it will be stayed.

  • 3. TonyMinasTirith  |  August 26, 2014 at 11:28 pm

    At this point, they really have no other choice but issue a stay. SCOTUS has set precedent (more than once) on issuing stays where the State opposes the district court's ruling. SCOTUS has only been willing to deny stays when there are no state officials or anyone with proper Article III standing challenging rulings over-turning the bans.

  • 4. Randolph_Finder  |  August 26, 2014 at 6:30 am

    As a note on Posner, yes he was appointed by Reagan, but is *nobody's* idea of a "Moralist right-wing judge". For example, to the right on anti-trust, to the left on drug policy and *very* prolific and respected.

  • 5. Scottie Thomaston  |  August 26, 2014 at 6:35 am

    Agreed. Plus he and Justice Scalia are feuding, so that's always good.

  • 6. Randolph_Finder  |  August 26, 2014 at 6:43 am

    I suggest http://joshblackman.com/blog/category/articles/po… for the history.

  • 7. Leeaundra  |  August 26, 2014 at 6:40 am

    So relieved I was right about this being the panel. Many didn't believe me, but I'm sure they are happy with this panel.

  • 8. Ragavendran  |  August 26, 2014 at 7:40 am

    I did remain unconvinced because it is not necessarily the case that the motions panel and merits panel for the appeals coincide, like in this case. I'm relieved too, though, because this might just be our first ever unanimous victory at an appeals court if we're lucky.

  • 9. Leeaundra  |  August 26, 2014 at 8:00 am

    The 7th Circuit is my home. I watch their bigger cases fairly closely. The timing of the panel handling motions was near perfect for the original (very rushed, in my opinion) Oral Argument date of August 5. They do this a lot in this court – enough to predict with some confidence. I had no reason to suspect that a new panel had been assigned once the new briefing/argument schedule came out. It's not always the case the two panels are the same, but it tends to be in this court with big cases.

    I am very much relieved and I do predict unanimous victory. Cheering for the cause and "the home team" justice.

  • 10. Ragavendran  |  August 26, 2014 at 8:23 am

    "I had no reason to suspect that a new panel had been assigned once the new briefing/argument schedule came out." – I agree. Among possible reasons based on public information, I can only put that down to a pending motion for initial en banc hearing at that time. I'm really glad you turned out right! I guess there were indications from the beginning – especially when they ordered recognition of one terminally ill couple as a (significant) exception to their stay order.

  • 11. ragefirewolf  |  August 26, 2014 at 9:48 am

    I keep wondering this, Raga

    Who decides who gets on an federal appeals court panel? Is it by lottery, or what?

  • 12. Ragavendran  |  August 26, 2014 at 9:57 am

    It is "pseudo-random", so largely lottery-based. Usually, each appeals court has a periodically randomly drawn motions panel which is common to all cases in that it decides all pre-argument motions, e.g., stay, extra time for filing, exceeding pages in briefs, etc. The Seventh Circuit has a rule that allows such a motions panel to ask for the case to be assigned to it (i.e., also function as the merits panel of the case) if it thinks that it would be efficient to do so. For example, in this case, the panel got significantly involved at the motions stage with multiple stay requests and a subsequent vacatur for a terminally ill couple.

  • 13. ragefirewolf  |  August 26, 2014 at 10:13 am

    Thank you! So this merits panel ended up being the same as the motions panel?

  • 14. Ragavendran  |  August 26, 2014 at 10:16 am

    Yup 🙂

  • 15. TonyMinasTirith  |  August 26, 2014 at 11:41 pm

    After today's smack down, these three judges would have to do a complete stop at full throttle, and make a full 180 degree turn to overturn the district courts. Anything is possible, but doing an about face is improbable. Lower Courts upheld 3-0. No en banc review either.

  • 16. DoctorHeimlich  |  August 26, 2014 at 6:41 am

    This might just be the best possible panel we could have drawn from the available judges. It feels like really great fortune for us! We'll see what the oral arguments suggest about the outcome.

  • 17. Leeaundra  |  August 26, 2014 at 7:07 am

    It is, in my opinion. Posner will keep it interesting. He always does because he's a great intellect and such a character. Pretty sure this one will be unanimous upholding the lower courts.

  • 18. Jen_in_MI  |  August 26, 2014 at 7:34 am

    I agree with that assessment. I feel so much more optimistic about the 7th than I did the 6th. We got a darn good draw!

  • 19. SWB1987  |  August 26, 2014 at 7:11 am

    How long are arguments schedule for?

  • 20. rwingfield  |  August 26, 2014 at 7:20 am

    Each side has 20 minutes for each of the two cases, so 80 minutes in total.

  • 21. RQO  |  August 26, 2014 at 7:12 am

    In an interview just after Windsor, I believe Posner mused that t non-recognition of other states' legal marriages was a problem.

  • 22. b843  |  August 26, 2014 at 7:14 am

    From a very quick look at some of Posner's writings, I think the minimum result would be a ruling that Indiana and Wisconsin must recognize valid same-sex marriages from other jurisdictions.

  • 23. debater7474  |  August 26, 2014 at 7:36 am

    Posner will waste no time in ripping opponents of marriage equality a new one. I can't wait to hear the audio.

  • 24. TonyMinasTirith  |  August 26, 2014 at 11:43 pm

    And that's exactly what he did!

  • 25. RnL2008  |  August 26, 2014 at 7:54 am

    Can't wait to hear the audio from today's hearing:-)

  • 26. Ragavendran  |  August 26, 2014 at 8:24 am

    I keep refreshing this page for the audio:
    http://media.ca7.uscourts.gov/oralArguments/oar.j

  • 27. galen697  |  August 26, 2014 at 8:28 am

    Sounds like oral arguments just concluded. https://www.facebook.com/groups/marriagelaw/49201

  • 28. Ragavendran  |  August 26, 2014 at 8:33 am

    How come? The official notice says hearing commences at 9:30am CT, not 8:30am CT, so 20 minutes per side per appeal means 80 minutes, meaning that the arguments cannot be complete until at least 10:50am CT.

  • 29. brooklyn11217  |  August 26, 2014 at 8:48 am

    First state concluded, Indiana, I think. Wisconsin going on right now.

  • 30. DaveM_OH  |  August 26, 2014 at 8:29 am

    A law professor friend of mine (who clerked for Easterbrook and was a research assistant for Posner) says (without hearing the arguments yet) that this is a 3-0, Posner writing, and probably done in 4-6 weeks – probably beating out the 6th.

  • 31. Ragavendran  |  August 26, 2014 at 8:36 am

    Wow – I really hope so! That's another advantage of a unanimous ruling – it is usually faster written 🙂 It would be awesome if the Seventh beats the Sixth and gives us a victory. Then, even if we lose the Sixth later, in terms of the appellate state victory count, we'll still be narrowly ahead 5-4.

    (Before today, counting differently, I was thinking that since we've had 2-1 wins within the two appellate panels to have ruled so far, a loss in the Sixth Circuit would still amount to a 2-1 win tally across appellate courts. A win in the Seventh then would make it 3-1 if we lose in the Sixth.)

    (All this is post-WIndsor, of course, as I'm not counting the Eighth as a loss.)

  • 32. DaveM_OH  |  August 26, 2014 at 8:45 am

    Linked to me from the same friend:
    "Marriage Equality Supporters Just Won the Lottery in a Federal Appeals Court"
    http://thinkprogress.org/justice/2014/08/26/34756

  • 33. StraightDave  |  August 26, 2014 at 8:47 am

    If your "4 states" is meant to be all of the 6th, I don't necessarily consider them to be a single unified result. I think the 2 (or 3?) recognition cases could easily be separated and are more likely winners since they are largely a shadow of Windsor.

  • 34. Ragavendran  |  August 26, 2014 at 8:49 am

    I'm not predicting anything – my counting was conditional on a total loss in the Sixth. That said, I hope you are right and that we win at least partially there!

  • 35. DaveM_OH  |  August 26, 2014 at 8:53 am

    Now, he also predicts a stay of the mandate pending disposition of the certiorari petition, because of what SCOTUS has already done. So there's that.

  • 36. Ragavendran  |  August 26, 2014 at 8:56 am

    Yeah, well – not to take away anything from his prediction, but that's pretty obvious at this point, right? I can't imagine even the most liberal appeals court panel refusing a stay of the mandate given what the Supreme Court just did to Virginia.

  • 37. Eric  |  August 26, 2014 at 10:37 am

    One difference, that could impact the issuance of a stay, is that the Indiana case is about a legislative statute, not a constitutional amendment passed by the voters.

    Attempts to get a constitutional ban on the ballot have failed every year since 2004.

  • 38. ebohlman  |  August 26, 2014 at 11:03 pm

    Another difference: in Bostic essentially both sides were asking for a stay.

  • 39. Elihu_Bystander  |  August 26, 2014 at 9:01 am

    If that is true that the 7th ruling beats out the 6th, is there any hope that the 7th’s ruling opinion would influence the outcome of the 6th’s ruling?

  • 40. Zack12  |  August 26, 2014 at 9:08 am

    Maybe but propably not.
    Judge Cook is a no vote and nothing any other circuit does is going to change her mind that if we want rights, then we better do it through the ballot box or state legislature and if we can't, too bad.
    And given his history, I think Judge Sutton will likely be that way as well.
    That is how these right wing Republicans judges work.
    They don't care about anything but making sure their far right viewpoints are upheld.

  • 41. Zack12  |  August 26, 2014 at 8:34 am

    This is the best possible panel we could have gotten and I think for once we will have a 3-0 ruling in our favor.

  • 42. Zack12  |  August 26, 2014 at 8:58 am

    From the sounds of it, Richard Posner is asking the state lawyers tough questions and not liking the answers he is getting.

  • 43. davepCA  |  August 26, 2014 at 9:10 am

    Zack, where are you hearing (or seeing) this? Is there some live blogging going on, or are there transcripts of the hearing posted already?

  • 44. brooklyn11217  |  August 26, 2014 at 9:20 am

    No live blogging from the court. Tweets from people who left the courtroom after the IN argument, and before the WI argument. Hashtag #7thCircuit

  • 45. Ragavendran  |  August 26, 2014 at 9:21 am

    While we're all waiting for the audio and first news reports, searching for #7thCircuit on twitter brings up a very very encouraging feed.

  • 46. SethInMaryland  |  August 26, 2014 at 9:01 am

    the way this panel is i almost bet not only they rule in favor of marriage equality but also rule no stay

  • 47. hopalongcassidy  |  August 26, 2014 at 9:08 am

    I'll bet you a bottle of Crown Royal and hope to lose!
    (I meant about the stay only!)

  • 48. ranjitbahadur0  |  August 26, 2014 at 9:41 am

    So matter how sympathetic a Judge or panel there might be, the probability of a ME ruling not being stayed is zero at this point.

    The SC have established and reinforced the guidelines to be followed in this matter – as long as the State is pursuing an appeal, any verdict shall be stayed.

    For a district Judge or Appellate court to not follow along would be pointless defiance.

  • 49. SethInMaryland  |  August 26, 2014 at 9:06 am

    i still we get a partial win in the sixth, i they will find a to strike down the bans , maybie not the way we were hoping but nonetheless a win. i think it be very unlikely the supremes will take 6th ruling anyway

  • 50. Leeaundra  |  August 26, 2014 at 9:19 am

    They may want a decision to overturn, and they seem to love to overturn the Sixth. Even more than the Ninth.

  • 51. rwingfield  |  August 26, 2014 at 9:30 am

    I think the best that can hoped from the Sixth is a 2-1 majority holding that Baker precludes examination of the merits with no comment whatsoever on the due process and equal protection arguments. Whilst a loss, it's better to lose on procedure rather than substance.

  • 52. ebohlman  |  August 26, 2014 at 10:47 am

    However, they can only do that for De Boer and Love; the other four cases deal only with recognition, which wasn't an issue in Baker, and summary dismissals are controlling only for the exact issue raised.

  • 53. Ragavendran  |  August 26, 2014 at 9:23 am

    Posner #7thcircuit: "Answer my question! Wouldn't the children want their parents to be married?"

    At #7thCircuit, Judge Posner said: "You're making the same argument that was made in 'Loving,' and #SCOTUS rejected it."

    Judge Posner to state lawyers defending ‪Indiana‬'s marriage ban in the ‪#‎7thCircuit‬ today: "You guys are going in circles."

    https://www.facebook.com/PrideLafayette/posts/101

  • 54. davepCA  |  August 26, 2014 at 9:44 am

    Hearing judges ask those questions and make those statements is like a breath of fresh air.

  • 55. Ragavendran  |  August 26, 2014 at 9:46 am

    And this is like a typhoon of fresh air: Judge Posner: "tradition isn't a reason… If you've been doing a stupid thing for 100 years [do you] keep doing it?" #7thCircuit

  • 56. TonyMinasTirith  |  August 26, 2014 at 11:52 pm

    And Posner is exactly right. "Tradition" alone is a lame reason to justify anything. By that reasoning, a man married for 50 years could get away with beating his wife by claiming, well Judge, I've beat her for the last 50 years, my father beat his wife, and his grandfather before that. It is tradition, and within the scope of our religious beliefs. My wife disobeys me and so, she traditionally gets a beating. They should just toss out "tradition" as an excuse for anything.

  • 57. Ragavendran  |  August 26, 2014 at 9:30 am

    Tweet Summary: http://www.thenewcivilrightsmovement.com/tweets_f

  • 58. andrewofca  |  August 26, 2014 at 9:41 am

    Thanks Raga… I've been refreshing all my feeds every 5 seconds this morning 😉

  • 59. RemC_in_Chicago  |  August 26, 2014 at 9:44 am

    Amazing morning. This is bound to be 3-0. No patience from Posmer w States' arguments. Pretty combative w IN. More later.

  • 60. DaveM_OH  |  August 26, 2014 at 9:49 am

    Glad you made it to the Court! Would love to read your feedback once you're ready.

  • 61. RemC_in_Chicago  |  August 26, 2014 at 10:31 am

    Posted on the latest post from EonT. Fantastic to hear a judge call out the stupidity in the "tradition" agruments: "Just because we've been doing the same stupid thing for a hundred or a thousand years, we should keep doing it." Also, very concerned about the impact of the bans on the children of gay parents. "Why wouldn't you want them to have the same benefits of the children of heterosexual couples?"

  • 62. JayJonson  |  August 26, 2014 at 10:52 am

    I am so glad you were there to hear (and see) the arguments. I was so dreading this circuit, but it seems that we got a wonderful panel and that the judges are asking exactly the right questions. Can't wait to hear the audio and read the reports from those who were in the courtroom this morning.

  • 63. Zack12  |  August 26, 2014 at 3:36 pm

    We literally couldn't have gotten a better panel then this.

  • 64. Mike_Baltimore  |  August 26, 2014 at 12:40 pm

    In the US South prior to the Civil War, and even up to today, there is the constant from at least some that slavery is 'tradition'. It was 'tradition' in Ancient Greece in 600 BC, so that means the 'tradition' of slavery was at least 2500 years old by the time of the US Civil War.

    There are still a few (not many) who would argue that slavery should still be allowed in the US, based on tradition. Hopefully that attitude disappears soon, though they still are pushing for slavery almost 150 years after it was eliminated in the US.

    Respect for a human vs. 'tradition'? I think I'll go with respect rather than 'tradition', as I suspect the vast majority would.

  • 65. TonyMinasTirith  |  August 26, 2014 at 11:58 pm

    It was also a tradition to keep schools segregated, and keep the races segregated by disallowing marriage between mixed race couples. Those traditions were "swept away", and so should this heterosexuals only marriage club. Tradition only speaks to how something has been conducted historically. It does NOT speak to fairness, liberty, constitutional rights OR always to fundamental rights. "Traditionally" only all "Men" (white land owner men) were created equal, and traditionally, women did not have a right to vote. More traditions that have gone in the dust bin of history.

  • 66. SWB1987  |  August 26, 2014 at 9:48 am

    I'm dying to hear oral arguments now!

  • 67. Corey_from_MD  |  August 26, 2014 at 10:04 am

    @SWB1987, oral arguments are ready at:
    http://media.ca7.uscourts.gov/oralArguments/oar.j

  • 68. Ragavendran  |  August 26, 2014 at 9:48 am

    Good feed from Jill Disis: https://twitter.com/jdisis

  • 69. andrewofca  |  August 26, 2014 at 9:48 am

    More Tweets: https://twitter.com/hashtag/7thCircuit?src=hash

    "Answer my question! Wouldn't the children want their parents to be married?" is my favorite. It's exactly what Kennedy said during the Perry arguments

  • 70. Ragavendran  |  August 26, 2014 at 10:00 am

    Indiana Audio: http://media.ca7.uscourts.gov/sound/external/rt.1

  • 71. Randolph_Finder  |  August 26, 2014 at 10:12 am

    Any transcript yet?

  • 72. Ragavendran  |  August 26, 2014 at 10:15 am

    Transcripts haven't been available for the other circuits, so I doubt the Seventh will make available one for the public. Even if they do, it will be a while before that happens, as it is likely to be manual.

  • 73. hopalongcassidy  |  August 26, 2014 at 11:16 am

    At least the audio is excellent quality, it won't be hard to do that. I could probably manage it in a couple hours but I have to leave by 1400. Somebody will though!

  • 74. DoctorHeimlich  |  August 26, 2014 at 10:19 am

    It's almost uncomfortable to listen to the hammering the state's lawyer is taking.

    Almost. If it wasn't so wonderful.

  • 75. Corey_from_MD  |  August 26, 2014 at 10:40 am

    It was quite entertaining!

  • 76. davepCA  |  August 26, 2014 at 11:35 am

    Oh wow, those first 22 minutes were just absolutely wonderful!!

  • 77. Ragavendran  |  August 26, 2014 at 11:40 am

    Yes, and Wisconsin's first 25 or so minutes are way way more wonderful 🙂

  • 78. Corey_from_MD  |  August 26, 2014 at 1:05 pm

    And the Emmys for the Best Performances by Right-wing Lawyers struggling to Block Marriage Equalitiy. Envelopes please. The winner is…

  • 79. davepCA  |  August 26, 2014 at 3:08 pm

    …. and there are no winners in this category, they are all losers. No surprise.

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