Notes from the Front

Most of our readers aren't lawyers, so in most cases you would think I'd be crazy to suggest that you should all sit down and listen to a couple of hours of oral argument in federal court, but in this case I'm absolutely serious.

You may have read or heard about this already, because it's the latest, or very nearly latest, development in the struggle to provide fairness and equality to same-sex couples, but also because the of the liveliness with which the chief protagonist in these cases, who also happens to be Richard Posner, a conservative federal appeals judge appointed by Ronald Reagan, participates. As you listen to the argument you get the real sense that the national argument is over and that this conservative jurist, who is actively trying to think through the elements of the argument, has come to the conclusion that there is no valid governmental justification for the prohibition of same-sex marriage. 

You can get the links to the liveliest segments, which David Lat at Above the Law refers to as benchslaps, here and here, but I really think you should listen to the whole thing for what it shows us about the litigation process. It's an excellent illustration of why the federal courts are so wrong to prohibit broadcasting of their proceedings.

There are two cases, one from Wisconsin and one from Indiana, and in each case the state's constitutional prohibition on same-sex marriage is being challenged; in each case the state has appealed to the Seventh Circuit because the district courts ruled against them.

When I talk to lawyers to help them prepare for oral argument, or to law students about what it's like, I make sure they understand that a judge is a lawyer just like you, and is really trying to figure out the right answer, so you want to be sure to answer the questions and to talk about what the judge wants to talk about. In these cases Posner is clearly at a loss to understand the state's argument, and he shows it by demonstrating how flimsy and unconvincing the bases for the same-sex marriage prohibitions really are. 

For instance, when the Indiana Solicitor General, Thomas Fisher, argues that preserving tradition is a valid justification, Posner says “So you can say that we've been doing this stupid thing for thousands of years and that's a good reason to keep doing it?” (Paraphrasing here.) This also leads him to conclude– and remember, he's a conservative–that the only real reason for banning same-sex mariage is hate.

He's equally hard on Wisconsin Assistant Attorney General Timothy Samuelson, who is equally unprepared to present a single valid reason for prohibiting same sex-marriages.

Some other fun points are when an attorney claims to have read a particular amicus curiae brief but admits that he doesn't remember what's in it, Posner says, “You don't remember. How odd.” And when an attorney is trying to weasel out of answering a fundamental question, Posner says flat out, “Look: just answer the question.” 

If you want to listen to the whole arguments here they are:


I want to point out a couple of interesting areas to listen to: First, in the Wisconsin case, starting at about 23 minutes in, Posner tries to get the state's attorney to speculate, to just try to think about some possible harms that someone might be worried about if marriage equality were legalized, and the attorney is completely at a loss even to try to speculate about a reason.

Another great point, also in the Wisconsin argument starting at 27:11, is where Judge Hamilton says about the state's proffered justification, “What it is is it's a reverse engineered theory to explain marriage in such a way that you avoid the logic of Lawrence and ignore a good deal of history about the institution of marriage and provide a very narrow artificial rationale for it.” What's significant about this statement is that the courts rarely reject out of hand any state's asserted reason for its policy decision.

Finally, I listened to these arguments in order, and when I listen to oral arguments I picture how I would handle them if I were in this position. In this case, as I was listening to the first argument (Indiana) I was picturing myself being the next guy up, watching his counterpart getting so badly beaten up, and thinking, “Oh shit, that's what's going to happen to me as soon as I stand up.”

It's a long weekend coming up, so spend some of your time listening. 


4 thoughts on “Notes from the Front

  1. That’s always been the clincher.  No one has ever come up with a good answer to that.

    They used to try arguing that it’s “the children,” but it sounds like Posner has done a great job of gutting that mackerel.

    Unfortunately, those days in court are all too infrequent.

  2. I just started listening from the start of the first recording and the lawyer starting off doesn’t even get 30 second into his presentation before the judge starts pointing out how ridiculous the state’s position is.  And you can hear how flummoxed the lawyer is by the question.  In all his prep, this wasn’t anything he’d prepared for.

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