Plaintiffs Leave Hearing Happy With Judges’ Line Of Questioning

Judge Richard Posner Was Especially Scrutinous Of Same-Sex Marriage Ban

A protester for marriage equality marching outside the Dirksen Federal Building in Chicago. Photo: Shawn Johnson/WPR News.

The three judges weighing the appeal of a lawsuit challenging Wisconsin’s ban on same-sex marriage made comments during Tuesday’s hearing that left the plaintiffs feeling optimistic.

All three of the judges on the U.S. 7th Circuit Court of Appeals asked tough questions about the ban, but it was Judge Richard Posner, an appointee of President Ronald Reagan, who had the sharpest words. For example, when Wisconsin Assistant Attorney General Timothy Samuelson said the same-sex marriage ban preserved the tradition of marriage, Posner shot back with the question: “It’s based on hate, isn’t it?”

Plaintiff Virginia Wolf, whose name is on the lawsuit challenging Wisconsin’s gay marriage ban, said she was amazed by what she heard from Posner.

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“I’m still sort of reeling from the questions that were asked that obviously … were questions that led to our point of view,” said Wolf.

Attorney Mike Dean with Wisconsin Family Action, the group that pushed for the same-sex marriage ban in 2006, said the court seemed unwilling to consider the legitimate interests of a ban. He said an appeal to the U.S. Supreme Court was possible.

“I think it’s very likely, and that’s one of the reasons that this case was briefed and scheduled with such rapidity,” said Dean. “These circuits are in a race to make sure that their decisions are the ones that ultimately become the law of the land before the Supreme Court.”

In the meantime, the 7th Circuit still has to rule on the case. It’s not clear when that ruling might come down.

Correction: The radio version of this story originally said the name of one of the judges on the 7th Circuit panel was William Posner. The judge’s name is actually Richard Posner.