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Gay marriage supporter Vin Testa waves a rainbow flag in anticipation of U.S. Supreme Court rulings in the cases against California's gay marriage ban known as Prop 8 and the 1996 federal Defense of Marriage Act (DOMA), outside the court building in Washi
The Seventh Circuit Court of Appeals has ruled that same-sex marriage bans in Wisconsin and Indiana are unconstitutional, making it the third appeals court to decide for marriage equality. Reagan appointee Judge Richard Posner wrote for the unanimous three-judge panel, bluntly rejecting arguments endorsed just the day before by a federal district judge in Louisiana:
“Our pair of cases is rich in detail but ultimately straightforward to decide,” Posner writes. “The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction — that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended— is so full of holes that it cannot be taken seriously. [...]

“The argument that the states press hardest in defense of their prohibition of same-sex marriage is that the only reason government encourages marriage is to induce heterosexuals to marry so that there will be fewer ‘accidental births,’ which when they occur outside of marriage often lead to abandonment of the child to the mother (unaided by the father) or to foster care.,” Posner writes. “Overlooked by this argument is that many of those abandoned children are adopted by homosexual couples, and those children would be better off both emotionally and economically if their adoptive parents were married.”

Quite a nice palate-cleanser after the Louisiana idiocy. It's not yet clear whether marriage can begin immediately in Wisconsin and Indiana; Wisconsin's Republican attorney general, J.B. Van Hollen, plans to appeal the decision straight to the Supreme Court.

The decision to appeal is one that might look a little different with Mary Burke, rather than Scott Walker, as governor of Wisconsin. Please give $3 to Mary Burke's campaign, to put a voice for equality in the Wisconsin governor's office.

Originally posted to Daily Kos on Thu Sep 04, 2014 at 01:30 PM PDT.

Also republished by Badger State Progressive and Kossacks for Marriage Equality.

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Comment Preferences

  •  Best quote is when (19+ / 0-)

    Judge Posner (a Reagan appointee) zings Scalia:  

    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.

    Anyone arguing that there's no difference between the parties is a fucking moron who can simply go to hell. -- kos

    by Its the Supreme Court Stupid on Thu Sep 04, 2014 at 01:33:41 PM PDT

  •  Just yesterday (12+ / 0-)

    NOM was gloating that the Louisiana ruling showed that our fight for equality was unraveling and the turnaround for their bigoted cause had arrived. Face, meet egg.

  •  Posner (6+ / 0-)
    He is a leading figure in the field of law and economics, and was identified by The Journal of Legal Studies as the most cited legal scholar of the 20th century.
    http://en.wikipedia.org/...
    •  Don't get too excited about that (3+ / 0-)
      Recommended by:
      patbahn, Whamadoodle, gharlane

      He's a poster boy for neoliberalism. Much of his research seeks to use economic principles to determine whether a law is worthwhile. Nearly everyone here would disagree vehemently with his views on economics.

      That said, he's obviously mad the right decision here.

      To believe that markets determine value is to believe that milk comes from plastic bottles. Bromley (1985)

      by sneakers563 on Thu Sep 04, 2014 at 02:00:47 PM PDT

      [ Parent ]

      •  He's very bright, very principled, his economics (2+ / 0-)
        Recommended by:
        freelunch, NotStupidinTexas

        I disagree with, but he's stuck by some
        very good principles even where his patrons
        hated it.

        His principles cost him a shot at the supreme court.

        He's no Sotomayor, but he's also no alito.

      •  I was thinking the same thing (0+ / 0-)

        The decision had a lot of law-and-economics thinking in it, and although I kind of enjoyed (OK, OK, really enjoyed) watching it being applied to this legal context, I'm not in general a fan of having that particular doctrine expanded in any context.

        That said, I did enjoy watching Posner rip the pro-discrimination "arguments" to shreds, even on that basis.  I guess I kinda already said that.

        And Posner is a good writer (or his law clerks are, or both).

        "A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defence agst. foreign danger, have been always the instruments of tyranny at home." - James Madison

        by gharlane on Fri Sep 05, 2014 at 12:22:14 PM PDT

        [ Parent ]

    •  There are some in the Law and Economics (2+ / 0-)
      Recommended by:
      Mike Kahlow, sfbob

      field (not Posner) who would like to take us back to Lochner.  Janice Rogers Brown is a primary example of how retrogressive Law and Economics can get.

      Anyone arguing that there's no difference between the parties is a fucking moron who can simply go to hell. -- kos

      by Its the Supreme Court Stupid on Thu Sep 04, 2014 at 02:14:06 PM PDT

      [ Parent ]

  •  Can't produce children? Seriously? (7+ / 0-)

    That was their argument? I must confess I am out of the loop on this issue of late. I had no idea they had resorted to THAT.

    At this point it's about billable hours and being able to look people in the eye and say "we tried". The judge's language spells it out. It's only a matter of time before this issues' fate is sealed at SCOTUS, with CJ Roberts authoring the ruling.

    In ten years Republicans will be campaigning on Equality issues, then my gay center-right friends can come out of the closet and vote their interests as Republicans without shame.

  •  Van Hollen in Wisconsin isn't running (4+ / 0-)

    for re-election so he's free to be as extremist as he wants.  Sure, he'll appeal this decision to the Supremes.

    The arc of history is against him.  There's nothing that's going to stop the marriage equality train.

    There already is class warfare in America. Unfortunately, the rich are winning.

    by Puddytat on Thu Sep 04, 2014 at 01:54:40 PM PDT

  •  Quite the epic day in America's courtrooms... (13+ / 0-)

    [1] Federal judge rules BP is grossly negligent for Deepwater Horizon oil spill

    [2] DC Circuit withdraws anti-Obamacare ruling

    [3] Federal judge restores early voting in Ohio

    [4] Virginia former governor Bob McDonnell found guilty of corruption

    [5] 7th Circuit strikes down gay marriage bans in Wisconsin and Indiana

    "It's almost as if we're watching Mitt Romney on Safari in his own country." -- Jonathan Capeheart

    by JackND on Thu Sep 04, 2014 at 02:00:20 PM PDT

    •  Not the top news story, though. (1+ / 0-)
      Recommended by:
      AJayne

      I am very saddened about Joan Rivers' tragic death. This really should be the top story.

      Maybe, just maybe, a few more people will tune in or sign on to learn about the top story and stick around long enough to learn about the second or third story.

      My guess? Either Bob McDonnell or the anarchist mobs protesting fast food wages. Unless there's a car chase or more naked celebrity pictures.

      Add this piece of good news (not related to courtrooms yet):

      [6] DOJ Civil Rights Division to investigate Ferguson PD and St Louis PD.

      "Never wrestle with a pig: you get dirty and the pig enjoys it"

      by GrumpyOldGeek on Thu Sep 04, 2014 at 02:43:57 PM PDT

      [ Parent ]

  •  This was issued quickly, as Judge Posner (1+ / 0-)
    Recommended by:
    LinSea

    said it would be. Any chance we hear from the 6th Circuit soon?

  •  The ruling is an amazingly great read (4+ / 0-)

    Reagan appointee Judge Richard Posner's ruling for the unanimous is one of the best summaries of all these issues.

    Some great quotes, but people should really read the entire ruling.  It doesn't just shoot down Wisconsin's and Indiana's positions - it totally destroys them.

    "When I use a word," Humpty Dumpty (Chris Christie, Antonin Scalia, or Scotty Walker (pick your favorite) said in rather a scornful tone, "it means just what I choose it to mean -- neither more nor less."

    by Eman on Thu Sep 04, 2014 at 02:10:41 PM PDT

    •  It mocks them. (7+ / 0-)

      Posner is almost at the point of not even taking Indiana or Wisconsin seriously because he cannot see any legitimate reason for the law.

      I do hope that Scalia's whine in Lawrence comes back to bite him hard.

      I much like how he dismisses the need to discuss levels of concern about the law since the states could not, in his view, offer any justification that wasn't completely laughable for their laws.

      tl;dr
      Discrimination against gays is bigotry, nothing else.

      Americans can make our country better.

      by freelunch on Thu Sep 04, 2014 at 03:34:10 PM PDT

      [ Parent ]

      •  Almost??? Nah, he crossed that point. (3+ / 0-)

        You picked up on the same tone I did.  Yes, from the very first page Judge Posner (a Reagan Republican) totally mocks their arguments.

        Some opinions, full of citations and legalese, are hard to follow.  This one has a great flow from beginning to end.

        And humor as he mocks them:

        First up to bat is Indiana, which defends its refusal to allow same-sex marriage on a single ground, namely that government's sole purpose (or at least Indiana's sole purpose) in making marriage a legal relation (unlike cohabitation, which is purely contractual) is to enhance child welfare...
        LOL at "up to bat..." as he then chews them up and spits them out.

        But the kicker has to be the last paragraph before the ruling where he clarifies Wisconsin's "confusion" in trying to understand the district judge's order.  I'm too lazy to transcribe it from the pdf, so people just need to read it.

        Thanks for posting.

        "When I use a word," Humpty Dumpty (Chris Christie, Antonin Scalia, or Scotty Walker (pick your favorite) said in rather a scornful tone, "it means just what I choose it to mean -- neither more nor less."

        by Eman on Thu Sep 04, 2014 at 03:59:15 PM PDT

        [ Parent ]

        •  I'm hoping that isn't a problem for (6+ / 0-)

          The Roman Catholic boys on the Supreme Court. It's really a decent decision, but it is written in such a breezy way, that it is a bit difficult to recognize it as a well-reasoned decision.

          Here is Posner's priceless advice to the Wisconsin Attorney General's office:

          Before ending this long opinion we need to address, though only very briefly, Wisconsin’s complaint about the wording of the injunction entered by the district judge. Its lawyers claim to fear the state’s being held in contempt because it doesn’t know what measures would satisfy the injunction’s command that all relevant state officials “treat same-sex couples the same as different sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage.” If the state’s lawyers really find this command unclear, they should ask the district judge for clarification. (They should have done so already; they haven’t.) Better yet, they should draw up a plan of compliance and submit it to the judge for approval.
          I don't think he thinks they are being honest with him.

          Americans can make our country better.

          by freelunch on Thu Sep 04, 2014 at 04:56:35 PM PDT

          [ Parent ]

          •  I don't think it's a problem (1+ / 0-)
            Recommended by:
            Eman

            I think the SCOTUS will take him VERY seriously.  From his wiki page:

            Richard Allen Posner (ˈpoʊznər; born January 11, 1939) is an American jurist, legal theorist and economist. He is currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School. He is a leading figure in the field of law and economics, and was identified by The Journal of Legal Studies as the most cited legal scholar of the 20th century.

            Posner is the author of nearly 40 books on jurisprudence, economics, and several other topics, including Economic Analysis of Law, The Economics of Justice, The Problems of Jurisprudence, Sex and Reason, Law, Pragmatism and Democracy, and The Crisis of Capitalist Democracy.

            All those youngsters on the SCOTUS will have undoubtedly have quoted him at least once at one time or another.

            Minority rights should never be subject to majority vote.

            by lostboyjim on Thu Sep 04, 2014 at 08:57:50 PM PDT

            [ Parent ]

          •  Thanks for posting that Wisconsin paragraph. (2+ / 0-)
            Recommended by:
            nadd2, freelunch

            Yes, "breezy" ia a great description of the written opinion.  I would say it is more than "decent."  Well reasoned, well stated with a logical flow not often found when judges (or their clerks) write.  

            Some decisions (including some of the favorable recent same-sex decisions) read like a cut-n-paste festival.  This one was just the opposite.  And it all built to that last paragraph.  Confirmation of what many of us in the midwest already know - that the Wisconsin AG is not the brightest candle on the cake.

            I've read this opinion twice in its entirety and laughed my way through both times.

            "When I use a word," Humpty Dumpty (Chris Christie, Antonin Scalia, or Scotty Walker (pick your favorite) said in rather a scornful tone, "it means just what I choose it to mean -- neither more nor less."

            by Eman on Thu Sep 04, 2014 at 10:12:03 PM PDT

            [ Parent ]

      •  Literally didn't take them seriously (4+ / 0-)
        Recommended by:
        Eman, nadd2, freelunch, petral

        From the decision:

        [Indiana'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
        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.)

        Fake candidates nominated by the GOP for the recalls: 6 out of 7. Fake signatures on the recall petitions: 4 out of 1,860,283.

        by GeoffT on Thu Sep 04, 2014 at 09:07:19 PM PDT

        [ Parent ]

    •  Thanks for the link!! (0+ / 0-)

      Posner's ruling is a great read.  And, it's nice to see that a judge that was appointed by a conservative clearly cares more about the law than politics.

  •  if the SC Takes it will they go Baker v Nelson? (0+ / 0-)

    I can see a scenario where the Supremes
    toss all this under Baker as "Lacking a substantial
    Federal Question"  and then letting people
    Marry in "Gay Marriage States" then
    come back to their states under Full-Faith and Credit
    and let them force the issue under Equal Protection.

    it's sort of around the horn and through the back door
    but, welcome to law.

  •  This is the money quote (9+ / 0-)

    ...from page 19 of the ruling:

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

    Vote YES on raising the minimum wage in Illinois on November 4, because HELL YEAH!!! isn't an option.

    by DownstateDemocrat on Thu Sep 04, 2014 at 03:35:25 PM PDT

  •  I applaud my congressman, Ron Kind. (6+ / 0-)

    The past few years, he's seen the light.

    Some of the comments are priceless.

    this will bring up the other part of , two men one woman or one guy and two women , or getting real bazaar dog and human or cat and human , come on KIND why are you into a mass marriage in the first place , a well lovers paridice , this person you should know , E. G.

    Screw John Galt. Who's John Doe?

    by Mike Kahlow on Thu Sep 04, 2014 at 03:51:29 PM PDT

  •  I look forward to reading the opinion (1+ / 0-)
    Recommended by:
    AJayne

    it's sure nice to smile & nod along to so many of these.

    "Everybody wants to leave ... some mark upon the world. Then you think, you left a mark on the world if you just get through it." -- drag artist Dorian Corey
    my book blog: Dare I Read

    by LuvSet on Thu Sep 04, 2014 at 05:46:49 PM PDT

  •  Appeal is moronic of Van Hollen (1+ / 0-)
    Recommended by:
    nadd2

    Drop it now, it's a dead issue come November.  Keeping it in the air as he intends to, it becomes vital for people who care about equal protection to turn out for Burke and Happ.

    And it won't change the ultimate outcome either: opponents of SSM have had decades to come up with a legal justification for discrimination that doesn't get them laughed out of court: what are the chances that they'll discover one in the next few months?

    Fake candidates nominated by the GOP for the recalls: 6 out of 7. Fake signatures on the recall petitions: 4 out of 1,860,283.

    by GeoffT on Thu Sep 04, 2014 at 09:14:28 PM PDT

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