Judge Richard Posner, appointed by Republican President Ronald Reagan in 1981, wrote the unanimous decision on behalf of a three-judge panel of the Chicago-based 7th U.S. Circuit Court of Appeals, striking down state bans on same-sex marriage in Wisconsin and Indiana. This line from Judge Posner is echoing all over the blogosphere:
“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.”
Given that two other federal appeals courts have struck down bans in Virginia and in Utah and Oklahoma (both decisions stayed pending appeal), “The Supreme Court is expected to weigh in on the gay marriage issue during its coming term, which starts in October and ends in June 2015,” reports Reuters.
On the other side, this week Federal District Judge Martin Feldman in Louisiana upheld that state’s ban on same-sex marriage, giving an indication of the hoary old arguments that the anti-equality side will marshal before the highest court. To wit:
“This Court is persuaded that Louisiana has a legitimate interest … whether obsolete in the opinion of some, or not, in the opinion of others … in linking children to an intact family formed by their two biological parents.”
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7 Comments for “Battle Lines”
posted by Tom Scharbach on
The 7th Circuit ruled in favor of marriage equality today, unanimously. The opinion was written by Judge Posner. In his ruling, Judge Posner wrote, “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.”
Because the states’ “heedless breeder” rationale for banning same-sex marriage was so weak — “irrational” is the word used in the opinion — the 7th Circuit did not need to address the question of whether or not same-sex marriage is a “fundamental right” or address the issue of whether or not “heightened scrutiny” is applicable to gays and lesbians. The 7th Circuit applied the “rational basis” test, and both Indiana and Wisconsin flunked, hands down.
The opinion was written by Judge Posner (Posner writes his own opinions, start to finish, rather than relying on clerks) and is classic Posner. He pins the states “rational basis” arguments, argument by argument and in detail, like bugs to the wall like bugs (something I remember all too well from the days when I was his student at the University of Chicago).
Typical was Judge Posner’s response to Indiana’s “heedless breeder” rationale:
The opinion is well written, caustic, funny and, like many of Judge Posner’s opinions, likely to become a law school classic. It is worth a careful read, not so much for the style but because of the clarity with which it destroys the anti-equality arguments.
In juxtaposition, yesterday, Judge Martin Feldman, a federal district judge in Louisiana, ruled against marriage equality.
Judge Feldman’s decision wiggled through a narrow opening to get to the result, and is also worth reading.
The opening was created by Justice Kennedy’s opinions in Romer, Lawrence and Windsor. As Judge Feldman pointed out, correctly, “neither the Supreme Court nor the Fifth Circuit has ever before defined sexual orientation as a protected class” entitled to heightened scrutiny under the Fourteenth Amendment, and, because of the uncertainty of Justice Kennedy’s opinions, Judge Feldman declined to “fashion a new suspect class”.
Judge Feldman’s statement is true enough, but it says nothing about how the Supreme Court will rule when confronted with the question. The statement is true solely because Justice Kennedy carefully avoided acknowledging that any level of heightened scrutiny was relevant to earlier cases.
Judge Feldman’s decision has its own difficulties, though.
First, Judge Feldman concludes that Louisiana’s anti-marriage amendment, which bans both marriage equality and/or “the legal incidents thereof” (read marriage-equivalent civil unions and limited-rights domestic partnerships) as rationally tied to the “historically preeminent purpose of linking children to their biological parents”.
That may be so, but the question that Judge Feldman declines to address is how the ban on marriage equality (and/or granting any legal rights to same-sex couples), as part of a statutory/constitutional scheme which permits opposite-sex couples who are the parents of non-biological children (adoption, so-called “blended families”) and/or who are childless/infertile and are not or cannot be biological parents to marry on the same basis as opposite sex couples with, or capable of producing, “biological children”, achieves that goal.
It is one thing to encourage a link between opposite-sex parents and their biological children; it is quite another to permit some couples with non-biological children while denying marriage to other couples with non-biological children. It is the latter half of that equation that Judge Feldman fails to take into consideration or address, and it is precisely that anomaly that goes to the heart of whether denial of marriage equality is rationally related to the states intended purpose. The problem with Louisiana’s marriage ban is that it draws the line at the wrong place, and Judge Feldman’s opinion ignores that issue entirely.
Second, Judge Feldman concludes that same-sex marriage is not a “fundamental right” because “any right to same-sex marriage is not yet so entrenched as to be fundamental” and that “[t]here is simply no fundamental right, historically or traditionally, to same-sex marriage.” Judge Feldman’s conclusion is grounded, it seems, in the idea that for a right to be “fundamental”, it must be part of a longstanding tradition. To my way of thinking, that begs, rather than addresses, the question. Certainly, no longstanding tradition of interracial marriage was entrenched in American law at the time when Loving was decided, no longstanding tradition of permitting felons to marry while in prison was entrenched in American law at the time when Zablocki was decided, and so on. The “fundamental right” to same-sex marriage, if one exists, is constitutionally embedded (as it was in those cases) in the “fundamental right” to marriage itself, not in the particulars of how far the “fundamental right” to marriage extends.
Third, Judge Feldman accepted the state’s rationale untested, in marked contrast to the 7th Circuit’s opinion. As a result, Judge Feldman did not get to the merits of Louisiana’s claims that the law is tied to the state’s interest in having children raised by their biological parents, and that, to my way of thinking, is the biggest flaw in the decision.
Whatever the merits of Judge Feldman’s decision (and it is extremely well crafted), the decision will be appealed to the 5th Circuit. Most observers expect the 5th Circuit, which is dominated by very conservative judges, to rule against marriage equality (in this case and a similar case on appeal from Texas). Judge Feldman’s decision may be a road map for the 5th Circuit decision (and for Justice Alito’s opinion later), but because the 5th Circuit is expected to be the outlier among the circuits, Judge Feldman’s decision doesn’t add or subtract much from the equation, for all the fuss that is being made and will be made of it.
We have been riding a wave of positive decisions since Windsor, and Judge Feldman’s decision is a reminder that marriage equality is not a slam dunk.
The 4th Circuit has decided in favor of marriage equality, as have the 7th and the 10th. The 9th Circuit almost certainly will. The 6th Circuit could go either way, depending on where Judge Sutton comes out. We are likely to have the 6th and 9th circuit decisions in place by the end of October. The 5th Circuit is expected to rule against marriage equality, but appears to be in no hurry to hear the Texas case, and probably won’t rush to hear the Louisiana case, either.
Whatever the circuits do or don’t, the Supreme Court will decide the issue. The Court might issue a broad ruling with national import, or it may issue a limited ruling (the Court has a history of moving cautiously on gay/lesbian issues, issuing narrow and incremental opinions), or it may choose to avoid the question (by holding off on granting/denying cert) as long as possible.
Looking forward, we can be almost certain that three justices (Justices Alito, Scalia and Thomas) will vote against equality. We can be almost certain that four justices (Justices Breyer, Ginsberg, Kagan and Sotomayor) will vote for equality. We expect Justice Kennedy to do so as well, although (as Judge Feldman suggested) his vote is not certain because of the historic deference he has paid to state’s rights. We don’t know what Chief Justice Roberts will do; his opinions to date suggest that he will vote against equality, but he takes the idea of the “Roberts Court” seriously and may well be loath to be in the minority on a national decision of this importance.
But a simple fact remains, and it is grounds for watchful caution. We need Justices Breyer, Ginsburg and Kennedy (none of whom are spring chickens), and the outcome may well depend on whether the three remain alive and in good health long enough for the Supreme Court to render a decision.
Like most people who follow the legal battle, I am mindful that a full nine-justice Court victory is not assured, and I dread the thought of a eight-justice Court, with Chief Justice Roberts being the deciding factor between a 5-3 victory and a 4-4 tie.
posted by Francis on
Posner had my lasting respect from the moment he demolished Fisher and Samuelson’s arguments. As to the Feldman crowd, I can only pray that we exercise enough prudence in our push for equality that we do not end up handing them victory on a silver platter.
posted by Tom Scharbach on
On the other side, this week Federal District Judge Martin Feldman in Louisiana upheld that state’s ban on same-sex marriage, giving an indication of the hoary old arguments that the anti-equality side will marshal before the highest court.
Two small side notes:
(1) Judge Feldman, like Judge Posner, was appointed by President Reagan. If you trumpet the one, it seems only fair to own up to the other. While you are at it, you might own up to the fact that all of the opinions in federal court to date against marriage equality have come from Republican-appointed judges. Judge Kelly, who dissented in the 10th Circuit in both the Oklahoma and Utah cases, was appointed by President Bush the Elder, Judge Niemayer, who dissented in the 4th Circuit, was appointed by President Bush the Younger. I think that the Republican-appointed versus Democratic-appointed analysis is sophomoric (puerile might be the better word for it), but if you are going to imply that the legal battle we are fighting is political ping-pong, fair is fair.
(2) I predict that the “hoary old arguments” put forth by Judge Feldman will be reflected in Justice Alito’s and Justice Scalia’s opinions, whether in the main opinion, a concurrence or a dissent, depending on how the Court rules. Judge Feldman is nobody’s fool — wrongheaded he may be, but he’s nobody’s fool — and his decision was artfully crafted to take advantage of the only opening left to the anti-equality forces.
posted by CMTinPHX on
Creationists and non-imbeciles have “battle lines” too. And I’m not afraid of losing that war either.
posted by CMTinPHX on
Creationists and non-imbeciles have their “battle lines” too. And I’m not afraid of losing that war either.
posted by Tom Scharbach on
A side note:
In an indirect response to the Burkean “wait and see” argument advanced by Wisconsin in the 7th Circuit, the senior legal officials from California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, New Mexico, New York, Oregon, Pennsylvania, Vermont, and Washington have filed an amicus brief in Herbert v. Kitchen (Utah, 10th Circuit) urging the Supreme Court to take up the issue this term and settle the law nationwide. The brief argues that the United States has had enough experience with marriage equality to go forward without fear of adverse consequences.
In turn, Colorado and the top legal officers of Alabama, Alaska, Arizona, Georgia, Idaho, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, West Virginia and Wisconsin filed a brief asking the Supreme Court to review Rainey v. Smith (Oklahoma, 10th Circuit) and Rainey v. Bostic (Virginia, 4th Circuit). The brief argues that without timely decision by the Supreme Court, the states will face substantial and unnecessary legal fees from defending marriage bans if the Supreme Court ultimately strikes down such laws.
Apparently, the one thing that everyone agrees on is that it is time to put this issue to rest.
posted by Pilar on
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