Comments

1
It's likely that Posner responded to the infertile incestuous explanation with a facial expression rather than in words.
2
As usual, Yiddish is insightful: nudge (nudzh) a bore or pest; to bore or pester; to push
3
"shreds"? Dude, we just had this conversation about hyperbolic clickbait. I'm disappointed in you, Mr. Dan Savage.
4
I love that Indiana is calling it "the marriage scheme".
5
Enjoy this well earned moment of vindication, Dan. Winning by winning: from your mouth to Posner's ears.
6
sweet-zombie-jeebuz! what horrors of twisted logic, their -own- logic, they have to spout to protect their selfish fears from being directly expressed.
7
Once again, conservatives are on the wrong side of history.

The courts can no longer uphold legislated bigotry against the LGBTQ community regarding our right to marry. It's just not defensible, yet the bigoted "Christians" never seem to tire of their crusade. All in the name of Jesus' love, right?

The bigots are losing the fight, and history is proving that their arguments are not legally defensible, nor do they reflect the values of that peace loving hippie they all seem to follow (Jesus).
8
Also, it's not like marriage is a requirement when heterosexuals make babies. Oh!, also, also: why do first cousins need a "nudge" from the state?

Maybe SB will come and explain all this to us.
9
Not the best sequence from today. The orals from Wisconsin's case: http://media.ca7.uscourts.gov/sound/exte…

Starting right around 3:30:
Posner: Why? Does [the Legislature] have a reason, or doesn't need a reason, or what?
Dipshit Attorney Samuelson: Well I think there's several reasons, I think tradition is one of the reasons...
Posner: How can tradition be a reason for anything? I don't get that. That's again the Loving case, right? The TRADITION of forbidding interracial marriage went back to colonial times. It was 200 years old by the time Loving came along.
DAS: I think Loving was a deviation from the common law rather than codifying it.
Williams interjects: What??
Posner chuckles: Look, interracial marriage had been forbidden in the colonies and in many many states not just southern or western, for over a hundred years, so why wasn't that a tradition?
DAS: It's distinguishable, it's a different tradition.
Posner laughs at him: Of COURSE it's a different tradition!
10
Samuelson: The context of Zablocki is significant. At the time, the only legal means for Mr. Redhail to engage in sexual intimacy was through the institution of marriage.
Judge Williams: Right, so your theory then is that when Zablocki said "The right to marry is of fundamental importance for all individuals" the court didn't actually mean that, but just meant to say that there's a fundamental right to have sex with people without criminal sanction. Is that right?

11
For bonus points, Judge Posner isn't just any conservative judge. He is highly regarded - and has had a long running feud with both Justice Scalia (whom Posner regards as incoherent) and Chief Justice Roberts (whom Posner regards as an incompetent administrator. The Chief Justice of the SCOTUS oversees the entire federal judiciary, and Posner has been highly critical of him on that issue.)

Posner is an interesting guy. He's the one who ruled against "Intellegent Design" in a case a few years ago.

As for Fisher, his argument is fundamentally flawed on several levels. In particular, it does not actually accomplish its stated objective (encouraging "responsible" heterosexual procreation), it is too broad for its stated purpose (it impacts same-sex couples who have nothing to do with these straight couples) and it treats similarly-situated classes differently (same-sex couples with children are not treated the same as opposite-sex couples with children.)

Game, set, match.
12
Oh, that makes sense @10. The purpose of marriage is to sanctify SEX. So first cousins sometimes want to have their sex lives sanctified. What SSM opponents DON'T want sanctified is icky butt-sex.*

(Note, I'm just going through their logic. OF COURSE I don't agree with it).

(*I just hope those first cousins aren't having icky butt-sex).
13
Re: venomlash. Editors compose the headlines for news stories, not the authors of the articles themselves. Blame for a bad headline goes to editorial staff, not Dan Savage.
14
Wait a minute! I thought that straight people were responsible and gay people were the sex-crazed monsters! Where was I when the world turned upside down?
15
The Washington Supreme Court decision was a dark day for me. I was disheartened by the illogic of their decision. It showed courts will stand reason on its head out of fear the populace isn't ready for the correct decision.

For me it created the seed that eventually grew into full throated support for same sex marriage.
16
Agree with @11, Posner isn't defined by the politics of the man who appointed him. Posner is a little too into freakonomics, but he is intelligent and more intellectually honest than the conservative majority of SCOTUS. That's probably why he was often discussed but never appointed to SCOTUS during W's presidency.
17
Posner is my judicial boyfriend. Except for the wack law and econ stuff.
18
@13
You would normally be right, but I'm fairly certain that doesn't apply to slog. It's a matter of blogs vs. newspaper content.
19
If you like the headline, I wrote it. If you hate it, Frizzelle did.
20
Yeah, Reagan may have appointed him, but Posner is awesome. He can be conservative, but in that "Reason and Sound Argument win the day" kinda way not the "Murrrica!" kinda way. The way you want judges to be.
21
@Dan: What if I'm indifferent? Constant?
22
I'd be totally fine with Posner replacing Scalia, Alito, or Thomas on SCOTUS. More than fine.. Too bad it'll never happen, judges, like all elected have to conform to lowest common denominator metrics.
23
So ... punish the gay people because they actually give thought to the consequences of having a child? Got it, Indiana, thanks.
24
@3 My dear friend, whose pen I nearly worship at times:

I must disagree with your premise that this post was hyperbole. I spent a joyful couple hours listening to the full playback. There was definitely shredding going on. Both appellant's (State's) attorneys were as mice or spiders being mercilessly toyed with by cats. Posner even said he wasn't interested in their stronger arguments, he wanted to tear apart their weak ones. And then the three judges proceeded to tear apart their entire miserable excuses for a case, from the bottom up. Into itsy-bitsy unexplainably pointless pieces.

It was like junior-high school students being critiqued at a grad-school level. By sadists.

I loved every second of it!

The judges also questioned the plaintiffs/appellees' attorneys, too, but it had an entirely different tone, like academics kicking around legal theories, just for the intellectual exercise, or maybe to test-drive some language for what is sure to be a withering opinion to affirm the lower courts. If it was a book, I'd be pre-ordering it now!
25
I listened to the whole thing. Fisher really got his ass devastated. He sounded like a bumbling nerd.
26
"Federal Judge Appointed By Ronald Reagan" -- really Dan? Judge Posner is an incredibly well known judge who has probably written on more legal issues than any judge who has ever say on the bench, and you feel the need to refer to him by the fact that Reagan appointed him? The dude is famous enough that you can just call him by his name.
27
In reading that excerpt and listening to some of the recording, and trying to follow the opponents' logic, my mind went to a quote from The Birdcage, uttered by Gene Hackman's character after he realizes the family-values woman he's so impressed by was a man in drag the whole time: "I feel like I'm insane."

@11: Are you referring to something other than Kitzmiller v. Dover in reference to ruling against Intelligent Design? That case was presided over by Judge John E Jones III, and as far as I am aware was the death knell for ID to be taken seriously. I can't find any reference to Posner being involved with ID other than a passing reference in a NYT article, critiquing traditional media.
28
It's amazing to me that a state solicitor general would think that those arguments are going to hold any water, given recent history.

I'd think it a much wiser course to steer clear as much as possible from the question of whether gay (or heterosexual) couples make good parents, or whether marriage is to promote responsible parenthood, and focus on whether exclusive recognition of heterosexual marriage is discrimination under a legal definition and whether a state has a right to limit its recognition to the same. I still think it'd be a losing argument, but at least it could be a less comical one.
29
Is there a full transcription somewhere? I don't have the patience to listen to the whole thing, but I'd love to read it.
30
[HA]

This is like a cross between The Importance of Being Earnest and Lord Edgware Dies. With the usual NASPALT Disclaimer, speak the truth about straight people being irresponsible sex fiends who procreate without rhyme or reason and therefore need every unfair advantage the state can bestow upon them in a sufficiently silly way, and nobody will believe it.
31
ROFL!!!!! My conservative boss just asked me why I am laughing and I told him.
32
Dan, I know this is an unsigned comment, but I hope you read it, so you get a sense of who Judge Posner is. Like @11 and @26 said, he is a very well regarded judge and judicial thinker. That however undersells him a bit. In truth he is nearly universally acknowledged to be the greatest judge not to be named to the Supreme Court, the first judge to wear that dubious title in about 50 years. The reason he has never been seriously considered is because of his independence and iconoclasm.

When he began his legal career, he was an ardent liberal who clerked for the great liberal Justice William Brennan and then worked in the Solicitor General's office under Thurgood Marshall. Then he became a professor at the University of Chicago where hebe ame enthralled with the freshwater economists there. Posner helped to create Law in Economics, a very influential theory in law which suggests that law should be interpreted through an economic lens. He became more conservative as he got deeper into it, as again his perspective came from freshwater economists. (Law and Economics is not inherently conservative; fellow L&E pioneer Guido Calabrisi of the 2nd Circuit and formerly of Yale, is famously liberal.)

After the financial collapse in 2008, Posner effectively renounced his entire philosophy in a giant mea culpa and as the Republicans have descended further into insanity, he has rediscovered his former liberalism. He is especially contemptuous of Scalia and since Heller, the handgun decision, Posner has missed no opportunity to attack what he sees as Scalia's nonsense philosophy.
33
@3: To me, it sounds like Thomas Fisher is like finely shredded machaca
34
Ehhhh Posner may have been appointed by Reagan but he's not really a "conservative" conservative - he's a Libertarian/general government skeptic. He is an enthusiastic atheist and he wrote a book post-economic-meltdown called "A Failure of Capitalism." He notoriously wrote a defense of selling babies. In other words, he's never been aligned with the far right. This really isn't a surprise.
35
I usually don't listen to stuff like this, but this was incredibly informative and entertaining. Thanks.
36
That was just so awesome. Thanks for the link to the audio.
37
I love me some marriage equality court transcripts. It is just too delicious to see the idiots squirm.

Also, Vaughn Walker was originally nominated by Reagan as well.
38
If you want to hear just snippets of the recording, Slate has a nice breakdown of the highlights. I love the sound of fear being slowly broken down by the light of law and logic.

It really is a rare inspirational thing to listen to, isn't it?

http://www.slate.com/blogs/outward/2014/…
39
If Judge Posner writes an opinion striking down a law prohibiting against same-sex marriage it will probably end the issue from a judicial standpoint. There might not be a more a more respected or more frequently cited living jurist. I really hope he is the author of the opinion when it comes out.

Please wait...

and remember to be decent to everyone
all of the time.

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