Balkinization  

Thursday, September 04, 2014

Posner v. Scalia: Round 2,346

Jason Mazzone

Among the many, many zingers in Judge Posner's  opinion today for the Seventh Circuit panel in Baskin v. Bogan affirming the district court judgments invalidating bans on same-sex marriage in Indiana and Wisconsin:
Subsequent decisions such as Romer v. Evans, 517 U.S. 620, 634–36 (1996); Lawrence v. Texas, 539 U.S. 558, 577–79 (2003), and United States v. Windsor [133 S. Ct. 2675 (2013] are distinguishable from the present two cases but make clear that Baker [v. Nelson, 409 U.S. 810 (1972)] is no longer authoritative. At least we think they’re distinguishable. But Justice Scalia, in a dissenting opinion in Lawrence, 539 U.S. at 586, joined by Chief Justice Rehnquist and Justice Thomas, thought not. He wrote that “principle and logic” would require the Court, given its decision in Lawrence, to hold that there is a constitutional right to same-sex marriage. Id. at 605.

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