Despite its fundamentally question-begging reason, Posner's 7th Circuit opinion was hailed by same-sex marriage advocates as the last word on the subject. It's dramatic rhetoric condemning traditional marriage advocates and all their works was devastating. It's arguments unanswerable.
Well, yesterday, Judge Jeffrey Sutton answered Posner, and in magnificent fashion.
In fact, Sutton's opinion was a point-by-point wrecking ball to each of Posner's arguments--arguments Posner took from plaintiffs in the lower courts and their judicial allies and magnified for his own rhetorical (and political) purposes.
I'm going to be posting various parts of the decision over the next week. Here's the first excerpt, having to do with the general questions of how the issue of same-sex marriage should be resolved:
Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us—just two of us in truth—to make such a vital policy call for the thirty-two million citizens who live within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee.
Wow. Judicial humility. Imagine that.
Place this bit of text against the arrogant sermonizing coming from other federal and state judges who think they are wiser than the rest of us, who apparently are not capable of making our own laws.
More to come.