In it, but not of it. TPM DC

Judge Richard Posner Pokes Scalia In Major Decision For Gay Marriage

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AP Photo / Dave Tulis

Posner wrote an impassioned opinion for a unanimous three-judge panel to overturn gay marriage bans in Wisconsin and Indiana. He said three past Supreme Court decisions in favor of gay rights — Romer v. Evans, Lawrence v. Texas and United States v. Windsor — didn't necessarily make gay marriage a constitutional right, although he noted that Scalia had suggested otherwise.

"But Justice Scalia, in a dissenting opinion in Lawrence ... 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," Posner wrote for the Court.

He was referring to Scalia's passionate dissent in a 2003 case which prohibited states from outlawing consensual same-sex sodomy. Scalia declared at the time that the Court had endorsed the "homosexual agenda" and had effectively knocked down the legal argument for prohibiting gay marriage. "Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned," Scalia wrote. He made a similar prediction in the 2013 ruling that axed the Defense of Marriage Act.

It was a cheeky move by Posner. As Garrett Epps, a constitutional law professor at the University of Baltimore, argued recently in The Atlantic, Scalia may have ironically made it likelier that lower courts rule for gay marriage by insisting that the Supreme Court had quashed the legal justification against it.

Scalia and Posner, both appointed by Ronald Reagan, have been feuding for several years. In 2012, Posner wrote a lengthy piece in The New Republic attacking Scalia's newly published book, arguing that the justice's philosophy of "originalism" was a smokescreen for the goal of achieving conservative ideological outcomes. Scalia accused the judge of lying and the two have been critical of one another ever since.