David Michael Miller
In seeking to discredit the unanimous 7th Circuit Court of Appeals ruling that struck down gay marriage bans in Wisconsin and Indiana, Julaine Appling took a swing at the "liberal panel of judges" that heard the cases.
Appling, executive director of Wisconsin Family Action, the socially conservative group that led the campaign to ban same-sex marriage in Wisconsin's constitution, also took a jab at Judge Richard Posner, who authored the 40-page decision released Sept. 4.
"Judge Posner in particular made his opinion quite clear," Appling said of the judge's aggressive questioning of the states' lawyers during oral arguments in Chicago on Aug. 26. "His clarity took a backseat only to his sarcasm."
Few would quibble that Posner has sarcasm down to an art. But the highly respected judge, who was appointed to the court by Republican President Ronald Reagan, is not "a left-wing liberal," says Howard Schweber, a political scientist and constitutional scholar at University of Wisconsin-Madison. "He is a leading light among conservative intellectuals." Moreover, "he's probably the leading intellectual light among currently serving judges, maybe including the United States Supreme Court."
That is why Posner's searing opinion -- which found the bans discriminated "against a minority defined by an immutable characteristic" -- is a "very important piece of the pressure on the Supreme Court," argues Schweber.
It is widely expected that the Supreme Court will take up one, some or all of the federal challenges to state same-sex marriage bans in its next session, which begins in late September. Since the high court invalidated large parts of the Defense of Marriage Act in United States v. Windsor in 2013, all but one of 22 federal court rulings have struck down bans on same-sex marriage.
Wisconsin Attorney General J.B. Van Hollen, along with Indiana Attorney General Greg Zoeller, appealed the 7th Circuit's ruling Tuesday. Their petitions join ones already pending before the court from the 4th and 10th Circuit Court of Appeals.
And more are likely on the way. A decision is expected soon from the 9th Circuit Court of Appeals, which held arguments Monday on same-sex marriage cases from Idaho, Nevada and Hawaii. Posner took just nine days to write his decision, prompting Appling to observe in an interview that federal appeals judges around the country "are in a foot race" to get their cases to the Supreme Court so they will be among those that get heard.
Schweber notes the high court has been reluctant to take on the issue of same-sex marriage, but Posner's critique, in particular, may leave it no choice.
"Posner is not just another circuit court judge," says Schweber. "This is the champion of legal conservatism who is really quite explicitly throwing down a gauntlet to the Supreme Court, saying, 'I dare you not to engage these arguments.'"
Schweber acknowledges the Supreme Court can do what it wants without any explanation, but says it would be unlikely for the justices to ignore Posner's more pointed challenges, including whether homosexuals should be treated as a protected class.
"He can't be dismissed that way," says Schweber. "If the conservative justices on the court, particularly [Antonin] Scalia and [Samuel A.] Alito, don't respond to this argument, it looks like a kind of intellectual cowardice."
Homosexuals as a 'suspect class'
Posner had a lot of fun piercing the arguments presented by state lawyers from Indiana and Wisconsin in defense of their respective same-sex marriage bans. When they argued that marriage should be strictly a tool the government uses to pressure heterosexuals who have unwanted children into legal unions, Posner broke down the logic in colorful terms.
"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."
When Wisconsin argued, as did Alito in his Windsor dissent, that no one knows what the ramifications of same-sex marriage will be, Posner took the state to task for failing to show how straight couples have been harmed by same-sex marriage where it exists.
"One would expect the state to have provided some evidence, some reason to believe, however speculative and tenuous, that allowing same-sex marriage will or may 'transform' marriage,'" Posner wrote.
Posner also floated the idea that laws singling out gay people for different treatment should trigger a "heightened level of constitutional scrutiny." That means state officials, for instance, would have to meet a higher standard in justifying laws that treat gay and lesbian people differently, making such laws harder to defend.
Schweber notes the Supreme Court has considered the issue of gay rights four times and each time stopped short of finding there was a need for "heightened scrutiny." But Posner, says Schweber, dares the justices to "dodge the question yet again."
Schweber doubts the Supreme Court will go so far as to determine homosexuals are a "suspect class" worthy of special protection, but ACLU-Wisconsin attorney Larry Dupuis is more confident.
"This fits so well into the paradigm that it shouldn't be too hard to get there," says Dupuis. ACLU-Wisconsin is representing the eight couples challenging Wisconsin's marriage ban in federal court.
Either way, Madison attorney Tamara Packard says if Posner's decision signals the appeals court's intent to provide special protections to homosexuals in other contexts, including cases of employment discrimination, it could make "it much harder for the government to get away with discriminatory treatment."
Swinging back at Posner
Attorneys general in nine states have refused, on constitutional grounds, to continue to defend their marriage bans, according to Freedom to Marry, an advocacy group that also tracks same-sex marriage rulings nationwide.
Van Hollen, however, has always vowed to take the fight all the way to the Supreme Court, and he stuck to that promise Tuesday. Perhaps mindful of the drubbing his assistant attorney general received at the hands of Posner, Van Hollen takes his own jabs, calling the court's analysis an "indecipherable amalgam of numerous 14th Amendment theories."
He makes an aggressive pitch for the high court to take the Wisconsin case over the others because it "uniquely presents the optimal vehicle for reviewing this compelling issue of nationwide importance." And he says the justices should decide whether homosexuals are, as Posner has asked, subject to a higher level of protection.
"This Court should take this case to clarify what standard applies," Van Hollen urged.
Schweber says Van Hollen's hard sell is surprising. "It's pretty unusual to specifically ask to go to the front of the line like that," he says. "Basically, Van Hollen is inviting the justices, especially Scalia and Alito, to take the opportunity to swing back at Posner."
The 7th Circuit ruling upheld the June 6 decision by U.S. District Judge Barbara Crabb striking down Wisconsin's marriage ban. More than 500 couples got married in the week before Crabb put her ruling on hold at the request of Van Hollen.