Judge Richard Posner Pokes Scalia In Major Decision For Gay Marriage

[DonViejo]

By SAHIL KAPUR Published SEPTEMBER 4, 2014, 5:31 PM EDT

Is Justice Antonin Scalia the ironic hero of the gay rights movement?

Somehow, the conservative jurist's arguments in prior opinions have become a regular feature in lower court rulings legalizing gay marriage. The latest example came Thursday in a decision by renowned Judge Richard Posner of the 7th Circuit Court of Appeals, with whom Scalia has an ongoing feud.

Posner wrote an impassioned opinion for a unanimous three-judge panel to overturn gay marriage bans in Wisconsin and Indiana. He said three past Supreme Court decisions in favor of gay rights — Romer v. Evans, Lawrence v. Texas and United States v. Windsor — didn't necessarily make gay marriage a constitutional right, although he noted that Scalia had suggested otherwise.

"But Justice Scalia, in a dissenting opinion in Lawrence ... 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," Posner wrote for the Court.

He was referring to Scalia's passionate dissent in a 2003 case which prohibited states from outlawing consensual same-sex sodomy. Scalia declared at the time that the Court had endorsed the "homosexual agenda" and had effectively knocked down the legal argument for prohibiting gay marriage. "Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned," Scalia wrote. He made a similar prediction in the 2013 ruling that axed the Defense of Marriage Act.

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http://talkingpointsmemo.com/dc/richard-posner-scalia-gay-marriage

[hlthe2b]

1. I love that the biggest thorn in the side of the Supreme court Rethugs is...

a conservative appellate judge appointed by their "beloved" Ronald Reagan.

[Ms. Toad]

3. That's the reason for lifetime appointments of Federal judges.

Often, when the politics of running for office do not force them to take politically motivated positions in order to be re-elected, they mature in their legal analysis. Far more frequently than the reverse that means they become more liberal.

[hifiguy]

7. No one exemplified growth on the bench

more than the late, great Harry Blackmun.

[Ms. Toad]

8. Agreed. n/t

[RKP5637]

2. K&R! n/t

[Prophet 451]

4. Posner is both right and wrong

He is right in that Scalia is a terrible jurist but wrong when he assumes that Scalia actually has any objective standard he follows. Scalia makes his decisions entirely on political grounds and barely bothers to disguise it. When same-sex marriage gets to the SCOTUS, Scalia will disregard his previous opinion entirely and vote against. This is so utterly predictable that I half-expect Scalia to just release a form letter of his future opinions that says "conservatives win all cases".

[NYC Liberal]

5. Yep. Like when he voted to strike down part of the VRA, then literally the next day

voted to uphold DOMA by declaring SCOTUS has no right to strike down a democratically passed law.

[hifiguy]

6. That is nothing more than sarcastic professional courtesy on Posner's part

and a not-so-veiled "Boy, you're dumb!" tweak of Fat Tony. I do not always agree with Posner, to be sure, but he has about seven times more brains than Scalia labors under the delusion that he has.

Among the killer lines are:

"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." (emphasis mine)

"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." (emphasis mine)

"The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases." (emphasis mine)

"And there is little doubt that sexual orientation, the ground of the discrimination, is an immutable (and probably an innate, in the sense of in-born) characteristic rather than a choice."

Judge Posner's opinion is the judicial equivalent of brick-by-brick demolition of a building. It's no surprise as anyone who heard the oral argument before the court - available on the internet - could plainly hear Posner demolishing the WI and IN attorneys general. There was nothing left of them but two pairs of smouldering shoes.


There are five justices on the SCOTUS who are reaching for the Pepto after reading Posner's opinion. Meanwhile, Justices Ginsburg, Breyer, Sotomayor and Kagan are quietly smiling to themselves.

[Prophet 451]

9. The demolition was well deserved

Personally, I think he's being too polite but having trained in law, the formality is difficult to put aside.

[hifiguy]

10. I clerked for a couple of judges

and when a judge gets that snarky (given the context) s/he is directly insulting the lawyers for the stupidity of their argument.

[Prophet 451]

11. You went further than I did

I trained but, for various reasons, never practiced.