While judges often play devil's advocate during oral arguments, the panel's
often-blistering questions for the defenders of the same sex marriage bans could be a
signal the laws may be in trouble — at least at this step in the legal process.
Attorneys general in both states asked the appellate court to permanently
restore the bans, which were ruled unconstitutional in June. Its ruling could affect hundreds
of couples who married after lower courts tossed the bans and before those rulings were
stayed pending the Chicago appeal.
Gay marriage is legal in 19 states as well as the District of Columbia, and
advocates have won more than 20 court victories around the country since the Supreme
Court ordered the U.S. government to recognize state-sanctioned gay marriages.
The U.S. Supreme Court has yet to take up a case, but Utah and Oklahoma cases
were appealed to the high court and Virginia's attorney general also has asked the justices
to weigh in. Appeals court rulings are pending for Kentucky, Michigan, Ohio and Tennessee,
while appellate court hearings are scheduled next month for Hawaii, Oregon, Nevada, and is
expected soon in Texas.
Richard Posner, who was appointed by President Ronald Reagan in 1981, hit the
backers of the ban the hardest. He balked when Wisconsin Assistant Attorney General
Timothy Samuelson repeatedly pointed to "tradition" as the underlying justification for
barring gay marriage."It was tradition to not allow blacks and whites to marry — a tradition
that got swept away," the 75-year-old judge said.
Prohibition of same sex marriage, Posner to the Wisconsin attorney, derives from
"a tradition of hate ... and savage discrimination" of homosexuals.Posner, who has a
reputation for making lawyers before him squirm, frequently cut off Indiana Solicitor
General Thomas Fisher, just moments into his presentation and chided him to answer his
questions. more >>