Judges Behaving Badly

Two recent examples of judicial misconduct, with two very different results.

Hercules and the Umpire on Judge Fuller:  http://herculesandtheumpire.com/2014/09/11/if-judge-fuller-wont-resign-the-chief-judge-of-the-circuit-and-the-circuit-judicial-council-should-strip-of-him-handling-cases-for-as-long-as-the-law-allows/

And Max Brantley on Judge Maggio: http://www.arktimes.com/ArkansasBlog/archives/2014/09/11/supreme-court-orders-immediate-removal-of-judge-maggio-from-bench

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Seventh Circuit holds Wisconsin and Indiana Bans on Gay Marriage are Unconstitutional

You will see much in the headlines today and tomorrow about this case.  The media will attempt to condense this 40 page decision into a few soundbites.   If you want to digest the whole decision for yourself, here it is:

Baskin v. Bogan and Wolfe v. Walker

If you don’t have the inclination to read the 40 page opinion by Judge Posner (joined by Judges Williams and Hamilton), here are few excerpts:

“We’ll see that the governments of Indiana and Wisconsin have given us no reason to think they have a “reasonable basis” for forbidding same-sex marriage. And more than a reasonable basis is required because this is a case in which the challenged discrimination is, in the formula from the Beach case, “along suspect lines.” Discrimination by a state or the federal government against a minority, when based on an immutable characteristic of the members of that minority (most familiarly skin color and gender), and occurring against an historical background of discrimination against the persons who have that characteristic, makes the discriminatory law or policy constitutionally suspect.”

*****

“Our pair of cases is rich in detail but ultimately straight-forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously.”

*****

“The district court judgments invalidating and enjoining these two states’ prohibitions of same-sex marriage are

                                                            AFFIRMED.”

*****

You may hear emphasis that this was merely a decision of a three-judge panel.  That is true.  In theory, the entire Seventh Circuit could choose to hear this en banc and issue a different decision.   That is possible, but unlikely.  The authoring judge, Richard A. Posner, is a Reagan appointee, and a rock-star among U.S. circuit judges.  You may also hear that this decision is not the law of the land until the U.S. Supreme Court weighs in.  That is not quite right.  It is now the law of the land in Wisconsin, Illinois and Indiana.  And it is persuasive (but not necessarily controlling) authority in any other court that faces the issue.