The United States Court of Appeals for the Seventh Circuit is a very conservative court. Seven of its ten active judges are Republicans, and these Republicans include some committed allies of the conservative Federalist Society. Nevertheless, anti-gay conservatives are likely to have little to celebrate once the Seventh Circuit hands down its closely watched decision in a pair of marriage equality cases the court will hear Tuesday. The Seventh Circuit just announced the three-judge panel who will hear this case — Judges Richard Posner, Anne Claire Williams and David Hamilton — and that appears to be very good news for Team Equality.
Judge Posner is the sole Republican on the panel — he’s served on the Court since President Reagan appointed him in 1981 — but he is a highly idiosyncratic judge who has grown increasingly critical of his fellow partisans in recent years. In a 2012 interview, for example, Posner complained that “there’s been a real deterioration in conservative thinking. And that has to lead people to re-examine and modify their thinking.” He added that he has personally “become less conservative since the Republican Party started becoming goofy.”
On the specific issue of gay rights, Posner’s views are a bit nuanced, but he is openly sympathetic to the case for equality. In a 2013 essay entitled “How Gay Marriage Became Legitimate,” Posner questioned the view that the courts have played much of a role in advancing LGBT equality. Using antiquated language, Posner’s bottom line was that “the growing acceptance of homosexual marriage seems a natural consequence of the sexual revolution that began in the 1960s rather than an effect, even to a small degree, of litigation.” Yet he was also dismissive of arguments against gay equality. “[I]t is hard to make a case for discriminating against [gay people],” Posner wrote, “apart from a religious case based largely on Roman Catholic doctrine.”
Judge Williams is less outspoken than Posner — few, if any judges, share Posner’s affection for expressing his views in public — but she is a Clinton-appointee to the Seventh Circuit who is widely viewed as left-of-center. Given the overwhelming consensus among federal judges that marriage equality is required by the Constitution, it is unlikely that Williams will break with this consensus.
That leaves Judge Hamilton. Hamilton was literally the first judge President Obama nominated to a seat on the federal bench. Although the White House attempted to sell Hamilton as a moderate, most Senate Republicans filibustered his nomination in large part due to a handful of opinions he handed down as a federal district judge on social issues such as abortion and religion. As with Williams, it is unlikely that Hamilton will break with the widespread judicial consensus supporting equality.
All of this, of course, is said with a standard caveat. It ain’t over until the court issues its mandate, and there is no way to be certain about how any of these judges will rule. Nevertheless, marriage equality supporters should be very pleased with this panel.