Take that, Hoosiers!
Friday, Sep 5, 2014 - Posted by Rich Miller
* From the US Appellate Court’s unanimous opinion yesterday that Indiana’s and Wisconsin’s gay marriage bans are unconstitutional…
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 permitted 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.
At oral argument the state‘s lawyer was asked whether “Indiana’s law is about successfully raising children,” and since “you agree same-sex couples can successfully raise children, why shouldn’t the ban be lifted as to them?” The lawyer answered that “the assumption is that with opposite-sex couples there is very little thought given during the sexual act, sometimes, to whether babies may be a consequence.” In other words, Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents—model citizens really—so have no need for marriage. 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.
Oof.
Judge Richard Posner wrote the opinion, naturally.
* By the way, Gov. Pat Quinn weighed in on the decision yesterday…
“This ruling is another victory for all people of our great country.
“In Illinois, we do not discriminate when it comes to love and marriage. Since the marriage equality went into effect in our state in June, couples across the Land of Lincoln have been able to marry freely and equally.
“We won’t stop until everyone in America has those same rights and protections under law. We set a model for the country in Illinois and now Wisconsin and Indiana will become the 20th and 21st states to enact marriage equality.
“Our country was founded on the desire to embrace all people and today is another step forward.”
* As did Equality Illinois…
The unanimous U.S. Court of Appeals ruling today in Chicago for the freedom to marry was a clarion call for Midwestern political leaders including Bruce Rauner of Illinois to end their stubborn opposition to marriage equality.
Equality Illinois demands that Bruce Rauner, the Republican nominee for governor, apologize for his pledge to repeal marriage rights and declare that he supports full marriage equality for same-sex couples.
“Bruce Rauner cannot hide behind his ‘no social agenda’ rhetoric when he has said clearly on the record that he would have vetoed the Illinois Religious Freedom and Marriage Fairness Act had he been governor,” said Bernard Cherkasov, CEO of Equality Illinois, the state’s oldest and largest civil rights organization advocating for lesbian, gay, bisexual and transgender Illinoisans.[…]
“The U.S. Court of Appeals spoke unequivocally in declaring that marriage discrimination hurts families, harms children, and is ultimately unconstitutional. Bruce Rauner’s explanations in defending his opposition to marriage rights are exactly what the court unanimously rejected, and it is both irrational and unconstitutional,” Cherkasov said.
“These political leaders do not have to wait for a further ruling from the U.S. Supreme Court to act. Gov. Pat Quinn and a majority of the Illinois House and Senate understood that when they passed the freedom to marry in Illinois,” said Cherkasov. “If Bruce Rauner doesn’t have the conviction to do what is right for families and children, then he doesn’t have what it takes to be the governor of the Land of Lincoln.”
No response yet from the Rauner camp.
- Anonymous - Friday, Sep 5, 14 @ 9:29 am:
Some heroes you have Bruce. They take bold action to destroy unions, but have to be forced to treat our gay brothers and sisters as equal citizens.
Pathetic.
- too obvious - Friday, Sep 5, 14 @ 9:31 am:
Not surprised and when the U.S. Supremes finally take this up their final approval settling legality of same sex marriage once and for all will be little more than a formality. Anyone can see where this is going.
I just think it’s funny to see people like Posner on their high horse taking a tone where he sees this as such an obvious thing and righting such an obvious wrong.
Well if it was so obvious and the wrong so bad, why didn’t he speak up 10 years ago or 5 years ago or last year for that matter? Where’s his op ed or even blog post?
- So. ILL - Friday, Sep 5, 14 @ 9:31 am:
I am sickened at the language used in regard to children. Babies are not “consequences”. Life is a miracle people, not some unfortunate happenstance that should be seen as a burden. I know my post has nothing to do with the ruling, but can we change the language a little bit? Reminds me of Obama’s line on being “punished with a baby.” Where does every adult think they came from?
- PoolGuy - Friday, Sep 5, 14 @ 9:32 am:
Indiana - the better business state for kissin’ cousins
- OneMan - Friday, Sep 5, 14 @ 9:35 am:
Before you hurt your arms patting yourselves on the back on how progressive Illinois is on this, lets remember that we were not exactly leaders on this and Dick Durbin did vote in favor of DOMA.
For what it is worth I agree with the court’s logic, but find it interesting public opinion on this has shifted very quickly and those on one side (who I suspect were not on that same side 3,5 or 10 years ago) tend to be really judgemental on those who disagree with them.
- Toure's Latte - Friday, Sep 5, 14 @ 9:37 am:
Given the previous rulings and court cases, this one is weak and tangential. Leave it to Indiana to pin hetero marriage’s hopes on accidental impregnation and kissin’ first cousins.
- OneMan - Friday, Sep 5, 14 @ 9:43 am:
Also I wonder at this point if the attorneys who have to argue this have kind of run out of ideas…
- VanillaMan - Friday, Sep 5, 14 @ 9:45 am:
This ship has sailed. We are at a point where we can start seeing beyond the political on this - and that is a good thing. The last thing we need is to see judges and governors beating it for political points among their supporters.
In Illinois, it is done and time for us to move on.
The judge could have made his points without insulting everyone else in the process. In doing so he exposed himself as someone just as close minded as those he condemns. He created straw man, gave them illogical opinions, then attacked them. It is one thing to disagree with their opinions, it is another to smear them in this manner.
Instead he should have said that marriage is a good thing that should be encouraged. It is as important as an education to the financial, emotional and health of each citizen. He should have noted that since we, as a society encourage education, we should be encouraging marriage just as much, and a ban on same sex marriage goes against a citizen’s ability to attain that good.
He should have stayed professional.
Quinn’s comments are typically useless. He is governor of Illinois, at least for now, and isn’t effected at all by this.
- Roland the Headless Thompson Gunner - Friday, Sep 5, 14 @ 9:46 am:
@Too Obvious: Courts in this country are not permitted to issue ‘advisory opinions’, ie., pronouncements on matters of policy just for the heck of it. There has to be an actual ‘case or controversy’, ie., a lawsuit, for them to issue a ruling. This matter had not come before the 7th Circuit before. That’s why Posner hadn’t issued a ruling previously.
- Roland the Headless Thompson Gunner - Friday, Sep 5, 14 @ 9:48 am:
@Vanilla Man: You obviously did not read the coverage of the oral arguments in this case. Posner needed no straw men here. He’s citing the actual defenses put forth by the attorneys general of Indiana and Wisconsin. It’s not his fault their arguments were laughable.
- Rayne of Terror - Friday, Sep 5, 14 @ 9:52 am:
@Vanilla Man Listen to the oral argument. These are the actual arguments put forward by the Wisconsin and Indiana attorneys. The Wisconsin argument has the most cringe worthy moments of the attorney responding, I don’t know to question after question.
- hisgirlfriday - Friday, Sep 5, 14 @ 9:53 am:
@So. ILL - I agree with you that Posner is more pithy than he needs to be in this opinion, but if you make a trip to the google I’m sure you’ll be a 100 times more horrified by other things he has written about children, abortion, and adoption. This is pretty tame by Posner standards.
- Skeptic Cal - Friday, Sep 5, 14 @ 9:55 am:
As to the Governor’s race, Rauner may not be harmed by his opposition to this decision. The courts can, and indeed should, rule on Constitutional issues without regard to popularity. Roe v. Wade is still widely rejected by vast groups of voters, even though it is accepted as the law in legal circles.
Some politicians campaign on issues about how the courts “got it wrong,” — a message that appeals to many.
We many see how Rauner wishes to play it for his base of voters.
- hisgirlfriday - Friday, Sep 5, 14 @ 10:02 am:
@Skeptic Cal:
Actually judges have to take popular sentiment at least somewhat into account when making rulings to ensure their pronouncements have popular legitimacy because the court has no way of enforcing their rulings without that legitimacy. Roe’s holding has actually been chipped away at for years by successive courts in many cases because of the politics of abortion and the Supreme Court took back their ban on the death penalty as unconstitutional in less than a decade’s time because of how out of touch that ruling was with popular sentiment at that time.
- Anon - Friday, Sep 5, 14 @ 10:04 am:
It’s good that VM recognizes how illogical the arguments were by the Hoosier and Cheesehead AGs.
- wordslinger - Friday, Sep 5, 14 @ 10:08 am:
When the State of Indiana’s position was first reported, I thought it was a gag.
What kind of fool would go in front of Posner and peddle that lunacy? It’s out of Monty Python.
VMan, Posner didn’t insult this goof, he was exceedingly restrained and kind.
- Archiesmom - Friday, Sep 5, 14 @ 10:16 am:
TO- the role of a judge, especially at the federal appellate level, is to ideally be the impartial interpreter of law and precedent on individual cases as they arise. No matter his personal opinion, Posner needs to rule as objectively as possible on each case. It would be wildly inappropriate for him to blog or advocate extrajudicially. Justice Scalia does it, and that is borderline unethical.
Posner is brilliant. And cranky sometimes, and can be blunt, to say the least, both in opinions and oral arguments. I may not always agree with him, but he is one of the finest appellate jurists in the country. It will be one of his cornerstone opinions in his career.
- Anon. - Friday, Sep 5, 14 @ 10:21 am:
==Well if it was so obvious and the wrong so bad, why didn’t he speak up 10 years ago or 5 years ago or last year for that matter? Where’s his op ed or even blog post?==
He’s a judge. He is not supposed to speak out on issues that might come before him for decision.
- Nonplussed - Friday, Sep 5, 14 @ 10:23 am:
hisgirlfriday: The First Amendment in particular is there to protect unpopular and offensive speech. Popular speech doesn’t need protecting.
If the U.S. Supreme Court had taken popular sentiment into account “at least somewhat”, then the obscenity cases of the 70’s or the online porn or violent video game bans in the last decade or so might have come down differently.
- Archiesmom - Friday, Sep 5, 14 @ 10:24 am:
= Not surprised and when the U.S. Supremes finally take this up their final approval settling legality of same sex marriage once and for all will be little more than a formality. Anyone can see where this is going.=
That will most likely not be be a slam-dunk decision, and it can go either way. It’s one of the reasons liberal Court watchers are so concerned about the health of Justice Ginsberg. One question is whether Justices such as Roberts want to be in front of history or behind it. I will be biting my nails the day this opinion is announced, and will be very happily amazed if the decision is 6-3 or better. This is no sure thing.
- Wumpus - Friday, Sep 5, 14 @ 10:36 am:
Rauner should simply state, same sex marriage is legal in IL. I am running for IL gov, not IN or Wisconsin Gov
- MrJM - Friday, Sep 5, 14 @ 10:53 am:
“Life is a miracle people, not some unfortunate happenstance that should be seen as a burden.”[citation needed]
– MrJM
- hisgirlfriday - Friday, Sep 5, 14 @ 10:57 am:
@Nonplussed -
Forgive me for injecting legalese into this discussion and perhaps confusing things.
When I mention court rulings needing to have “popular legitimacy” I am not referring to poll numbers or a popularity contest notion of “popular.”
I mean does this have enough legitimacy that the people will accept it even if they don’t agree with it and will the people generally still see the court as representing the interests of “we the people” or somehow detached from the people and thus illegitimate because the court derives all its power through popular sovereignty.
BTW, contrary to Posner’s ruling, Louisiana had a federal court uphold its ssm ban in the last week so the other side has had at least one victory this year.
- John A Logan - Friday, Sep 5, 14 @ 10:58 am:
Oklahoma is looking better all the time.
- MrJM - Friday, Sep 5, 14 @ 10:59 am:
“Actually judges have to take popular sentiment at least somewhat into account when making rulings to ensure their pronouncements have popular legitimacy because the court has no way of enforcing their rulings without that legitimacy.”
Yes, but when the Supreme Court declared anti-miscegenation laws unconstitutional in 1967, fewer than 20% of Americans approved of marriage between blacks and whites. http://www.gallup.com/poll/163697/approve-marriage-blacks-whites.aspx
Sometimes the Court just does the right thing.
– MrJM
- Nonplussed - Friday, Sep 5, 14 @ 11:05 am:
hisgirlfriday, I will give you this: Posner did not thing the country was ready for same-sex marriage in 1997 (the last paragraph has the money shot) and that courts should be careful to impose it. http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=5151&context=journal_articles
- Willie Stark - Friday, Sep 5, 14 @ 11:22 am:
MrJM, you are the CapFax jester par excellence! Laughed out loud at your citation needed quip, but appreciate your later scholarly note on sometimes the courts just do the right thing. Thank you for bringing levity and thoughtfulness to the comments.
John Logan: please go to Oklahoma post haste. The fewer haters and moral Neanderthals we have in IL, the better.
- A guy... - Friday, Sep 5, 14 @ 11:27 am:
Start looking for Amber Alerts on First Cousins on I-65.
- VanillaMan - Friday, Sep 5, 14 @ 11:36 am:
John Logan: please go to Oklahoma post haste. The fewer haters and moral Neanderthals we have in IL, the better.
That’s written like a moral Neanderthal who hates anyone living in a place called Oklahoma, right?
- Archiesmom - Friday, Sep 5, 14 @ 11:45 am:
hisgirlfriday - the LA opinion was a joke. It was full of holes and flat out misstatements of the law. It’s DOA at the Fifth Circuit.
- Precinct Captain - Friday, Sep 5, 14 @ 11:55 am:
This just in from the Rauner camp:
Bruce Rauner: “I would veto this decision.”
Reporter: “You can’t veto a court decision.”
Rauner: *Laughs* “I’ve been successful at everything I’ve ever done.”
- Willie Stark - Friday, Sep 5, 14 @ 12:08 pm:
VanMan: I don’t hate the people who live in OK. I’m just encouraging John Logan and anyone else who claims to find our state so intolerable to be gone. Yes, OK is a red state, but beyond the Flaming Lips, what else does it have going for it? And, to anticipate your strawman argument, I’m not saying one can’t criticize IL, I’m saying if one offers that some other state is to be preferred, then call Atlas and get on down the road.
- Rich Miller - Friday, Sep 5, 14 @ 12:08 pm:
===what else does it have going for it? ===
The Red Dirt genre is awesome.
- Precinct Captain - Friday, Sep 5, 14 @ 12:10 pm:
==- too obvious - Friday, Sep 5, 14 @ 9:31 am:==
Look through the Becker-Posner archives. Here’s something a little old search engine popped up. http://www.becker-posner-blog.com/2008/08/the-economics-of-gay-marriage–posner.html
- Willie Stark - Friday, Sep 5, 14 @ 12:37 pm:
Thank you, Mr. Miller, for the tip. Willie stands corrected, but he’s still staying in IL. I’ll punch that up on the ‘ol Spotify this weekend and get myself educated. Additionally, Oklahoma! - the musical - is pretty great, though it was written by two dudes from New York City.
- VanillaMan - Friday, Sep 5, 14 @ 1:16 pm:
Please read
There are 3.8 million people in Oklahoma and it has become an exciting place to move to. I’m certain that there are more than another gentleman living in Oklahoma who would support your political views. There could even be more.
So before you insult an entire US state, due to the political party currently running it’s state government, you may stop yourself from insulting all those who agree with you, but live there.
It is a very good place to live, btw.
- Illiana - Friday, Sep 5, 14 @ 1:21 pm:
I really wish people would stop with the whole “if you think x is better you should move there”. For most people politics is not a big enough part of their lives to influence where they live & even for those of us to care enough about politics to read this website, I find it unreasonable to tell people include politics as a factor in deciding where to live or whether to stay.
- Willie Stark - Friday, Sep 5, 14 @ 1:44 pm:
I really wish people would read for comprehension. John Logan writes “Oklahoma is looking better all the time” implying as a place to live, or what’s his point? Willie Stark suggests he hit the road, we won’t miss him. VanMan accuses Willie of hating the people of OK, when the extent of Willie’s comments were that it’s a red state with not much going on. That doesn’t equal hate. Then Illiana gets annoyed at Willie for encouraging John Logan to do the thing John Logan said he was thinking about doing.
This is all super silly, Willie included and writing in the third person to boot, but it demonstrates in microcosm the extreme polarization of our times and the unwillingness of so many to listen what others are saying and respond to them on that basis.
- Ghost - Friday, Sep 5, 14 @ 2:33 pm:
WIllie Stark please stop advocating for buttered popcorn to be given to people free with the cost of thier movie tickets. That is clearly what you just said…..
- VanillaMan - Friday, Sep 5, 14 @ 2:35 pm:
“Moral Neanderthal” is not a pet name of affection.
- Archiesmom - Friday, Sep 5, 14 @ 2:35 pm:
= The Red Dirt genre is awesome.=
Thanks, Rich. Bob Childers is fantastic. Red Dirt is a great American music genre. I needed that - it’s been a long week and I will head into the weekend with a honky tonk country frame of mind.
- How Ironic - Friday, Sep 5, 14 @ 2:37 pm:
@VM, but it would make a great band name, genre undetermined.