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发帖数: 6276 | 1 http://www.slate.com/blogs/outward/2014/08/27/listen_to_judge_r
Judge Richard Posner of the 7th Circuit Court is a moderate conservative
with an unapologetic bias toward reality and logic. This bias makes him an
ideal Slate columnist. It has also turned him into something of an
iconoclast among his conservative colleagues, who frequently jettison
prudence and precedent in order to achieve results that just happen to align
with the Republican Party’s platform.
On Tuesday, Posner put his judicial independence front and center during
marriage equality oral arguments at the 7th Circuit. While lawyers for
Wisconsin and Indiana attempted to defend their state’s marriage bans,
Posner issued a series of withering bench slaps that unmasked anti-gay
arguments as the silly nonsense that they are. Reading this string of brutal
retorts is fun enough—but it’s even better to listen to them delivered in
Posner’s own distinctive cadence.
•“It was tradition to not allow blacks and whites to marry — a
tradition that got swept away,” Posner said. Prohibition of same sex
marriage, he said, is “a tradition of hate … and savage discrimination.
•At one point, Posner ran through a list of psychological strains of
children of unmarried same-sex couples, including having to struggle to
grasp why their schoolmates’ parents were married and theirs weren’t.
•“What horrible stuff,” Posner said. What benefits to society in
barring gay marriage, he asked, “outweighs that kind of damage to children?”
•A three-judge federal appeals panel on Tuesday closely questioned
Wisconsin and Indiana’s bans on same-sex marriage, with one judge calling
parts of the states’ arguments “absurd” and “ridiculous.”
•“These people and their adopted children are harmed by your law,”
Judge Richard Posner said of gay and lesbian couples who are barred from
getting married. “The question is what is the offsetting benefit of your
law. Who is being helped?”
•Wisconsin Assistant Attorney General Timothy Samuelson responded that
society as a whole benefited by preserving marriage as it has long been
defined. Posner pressed on, asking if anyone would be harmed if same-sex
couples were allowed to be married.
•But Posner expressed skepticism of the idea that the states were
trying to promote procreation. “You allow all these sterile couples to get
married,” he said. “Why are you doing that if you’re so interested in
procreation?”
•Posner, who at times appeared to lecture the attorneys defending the
bans, focused on the ability of same-sex couples to adopt children. He noted
adopted children would benefit if their parents could claim the tax breaks
and other perks of being married.
•“These children would be better off if their parents could marry, no
? It’s obvious,” Posner said.
•“Why do you prefer heterosexual adoption to homosexual adoption?”
Judge Posner, appointed to the bench by President Reagan, asked. When Fisher
began responding that the marriage laws were unrelated to adoption, Posner
was almost vitriolic in his response, saying of the state’s treatment of
the children of same-sex couples, “You want them to be worse off.”
•At different times, Posner referred to Fisher’s arguments as “
pathetic,” “ridiculous,” and “absurd.”
•“How can tradition be the reason?” he 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.”
I don’t think the lawyers could do any better.
Putting aside the merits of the case, Posner is a bully from the bench. I’
ve followed all of the other arguments in these cases, and the judges, even
those who disagree with the lawyers, managed to be courteous and respectful.
Update: Ian Milhiser at ThinkProgress transcribes a full exchange with
Posner:
Posner: What concrete factual arguments do you have against homosexual
marriage?
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? |
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