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Posner notable, quotable in same-sex marriage decision

By: Eric Heisig//September 5, 2014//

Posner notable, quotable in same-sex marriage decision

By: Eric Heisig//September 5, 2014//

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Court_Gestures_300x100_Maybe I wasn’t reading as many tweets about prior same-sex marriage decisions, but I don’t remember seeing nearly as many memorable quotes as I did Thursday.

It makes sense, though. Seventh Circuit Judge Richard Posner, who wrote the opinion, is widely regarded as one of the best legal writers in the country. The judge has been on the bench since 1981 and is one of the few judges who still writes his own decisions, instead of relegating early drafts to clerks. His decision, while longer than he normally writes, took on the same dismissive and borderline scathing tone he took when a three-judge panel was hearing oral arguments for the Wisconsin and Indiana cases last week.

So I guess it’s no surprise that news outlets and people on social media weren’t struggling to find quotable lines. I saw several tweets that singled out the line that said Wisconsin and Indiana’s argument “is so full of holes that it cannot be taken seriously.”

Contrast this with the legalese-heavy opinions of the 4th Circuit or the 10th Circuit. All three came to the same conclusion, it’s just that, well, Posner’s decision was downright literary.

And that’s not a criticism. But in terms of a cultural impact, it can certainly help get the message across a bit easier.

“His opinions tend to be pretty accessible for non-lawyers,” Tamara Packard, a civil rights attorney at Cullen Weston Pines & Bach LLP, Madison, said.

Judge Richard Posner

Packard said a few friends of hers who are not lawyers were “tickled pink” on how readable and quotable it was, and that they only had to skim over a few paragraphs to avoid any legalese. The other decisions were more “traditional (and) measured,” she said.

But the opinion stuck out for another reason, too. Posner didn’t focus on a fundamental right/due process analysis to come to his conclusion. Instead, he focused on equal protection, writing that it is apparent that arguments for the same-sex marriage in both states is “groundless.”

Packard said it’s incredibly difficult to predict why a judge would choose an argument to focus on, but suspects that it’s because the decisions in the 4th and 10th circuits used more of a fundamental right/due process analysis. She did, though, say that the decision’s timing — nine days after oral arguments and three months after Western District Judge Barbara Crabb’s decision — is putting it on the fast track to the U.S. Supreme Court.

She said that the 7th Circuit’s decision, as well as those from other courts, “signals where the judicial reading of the law is,” and could potentially influence whether the higher court decides to take up the case.

The Supreme Court’s next term starts next month. If they take on same-sex marriage, their decision will be widely quoted.

But I doubt nearly as many people will find it as quotable as Posner’s decision.


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