As we mentioned in Morning Docket and on Twitter, yesterday’s Seventh Circuit arguments weren’t fun for the defenders of Wisconsin and Indiana’s same-sex marriage bans. The three judges, especially Judge Richard Posner, were tough — very tough.
Chris Geidner of BuzzFeed, a leading chronicler of marriage-equality litigation, described the proceedings as “the most lopsided arguments over marriage bans at a federal appeals court this year.” Ian Millhiser of ThinkProgress called it “a bloodbath.”
That’s no exaggeration. Let’s check out the specifics….
A Seventh Circuit panel consisting of Judge Richard Posner, Judge Ann Claire Williams, and Judge David F. Hamilton heard argument on Tuesday in two cases: Baskin v. Bogan, a challenge to Indiana’s statutory ban on same-sex marriage, and Wolf v. Walker, a challenge to Wisconsin’s constitutional ban on same-sex marriage. You can listen to the arguments here (Baskin) and here (Wolf).
If you pick just one, go for Wolf; it offers more cringe-worthy moments and more schadenfreude. Wisconsin’s lawyer, assistant attorney general Timothy Samuelson, didn’t fare as well before the panel as Indiana’s solicitor general, Thomas Fisher (although, in fairness to Samuelson, both got hit pretty hard).
At various points, Judge Posner derided arguments from the Wisconsin and Indiana lawyers as “pathetic,” “ridiculous,” and “absurd.” When Samuelson tried to justify the Wisconsin ban by citing “tradition” and “the democratic process,” he got this from Posner:
“How can tradition be the reason?” Posner asked, mocking the answer by responding that saying “we’ve been doing a stupid thing” for a long time certainly wouldn’t be enough of a justification to uphold a law or practice.
When Samuelson offered “deference to the democratic process [as] another purpose,” Posner wanted more, telling the frustrated lawyer, “You have to have something better.”
Samuelson’s invocation of Edmund Burke wasn’t that something:
Samuelson: Well, we have, uh, the Burkean argument, that it’s reasonable and rational to proceed slowly.
Posner: That’s the tradition argument. It’s feeble! Look, they could have trotted out Edmund Burke in the Loving case. What’s the difference? [Note: Loving v. Virginia was a 1967 decision striking down bans on interracial marriage] . . . There was a tradition of not allowing black and whites, and, actually, other interracial couples from marrying. It was a tradition. It got swept aside. Why is this tradition better?
Samuelson: The tradition is based on experience. And it’s the tradition of western culture.
Posner: What experience! It’s based on hate, isn’t it?
Samuelson: No, not at all, your honor.
Posner: You don’t think there’s a history of rather savage discrimination against homosexuals?
Professor Josh Blackman collects additional highlights from Judge Posner here. But my favorite comment came not from Judge Posner but Judge Ann Claire Williams. You can listen to it here (around 16:50; Judge Posner has just asked Samuelson a question, but the yellow light has turned on, indicating that Samuelson’s argument time is almost over):
Samuelson: First off, the yellow light is on — may I respond, Your Honor?
Posner: Yes, because the yellow light, it just tells you that you’ve got….
Williams: It won’t save you.
Judge Williams’s quip stopped the show, and with good reason: it was funny because it was true. The yellow light didn’t prevent Samuelson from getting beat up for a few more final minutes.
Professor Blackman felt Judge Posner went too far, describing him as “a bully from the bench.” But I viewed it as just “Posner being Posner” — i.e., engaging deeply with the ideas and arguments, and showing little patience for weak or evasive responses.
The Indiana and Wisconsin advocates shouldn’t take any of it personally. What they got yesterday from Judge Posner wasn’t any worse than what the judge dishes out to hapless Jones Day partners — or even Supreme Court justices. So, gentlemen, consider yourselves in good company!
UPDATE (3:30 p.m.): If you don’t have time to listen to the full arguments, Mark Joseph Stern offers a great collection of audio clips over at Slate.
Posner’s Greatest Hits in SSM Oral Arguments – “Pathetic,” “Ridiculous,” and “Absurd.”
[Josh Blackman's Blog]
Federal Appeals Court Judge: Ban On Same-Sex Marriage Is ‘Based On Hate’ [ThinkProgress]
Indiana, Wisconsin Lawyers Get Tough Questions Over States’ Marriage Bans [BuzzFeed]
Judges Take Tough Tone at Gay Marriage Hearing [Associated Press via New York Times]