Mark Joseph Stern reports that Judge Richard Posner’s ruling striking down Indiana’s and Wisconsin’s gay marriage bans is a masterpiece of wit and logic.
Ironically, by writing an opinion so fixated on the facts at hand, Posner may have actually written the one gay marriage ruling that the Supreme Court takes to heart. Other, more legacy-minded judges have attempted to sketch out a revised framework for constitutional marriage equality, granting gay people heightened judicial scrutiny and declaring marriage a fundamental right. But Posner isn’t interested in making new law: The statutes before him are so irrational, so senseless and unreasonable, that they’re noxious to the U.S. Constitution under almost any interpretation of the equal protection clause.
That will probably surprise no one who has read Posner’s book Sex and Reason. It’s still good to know, though.
Posner’s opinion largely follows the points he made during his forceful, trenchant, deeply empathetic questioning at oral arguments. To his mind, there’s no question that gays constitute a “suspect class”—that is, a group of people with an immutable characteristic who have historically faced discrimination. Refreshingly, Posner performs a review of “the leading scientific theories” about homosexuality to illustrate that being gay isn’t a choice. (Compare this with Justice Antonin Scalia’s gay rights dissents, in which he suggests that there’s no such thing as a gay orientation at all and that “gay” people are just disturbed individuals performing debauched sex acts.)
In some way, on some subjects – and this is one – libertarian legal theorists are very much preferable to Catholic ones.
Posner’s opinion largely follows the points he made during his forceful, trenchant, deeply empathetic questioning at oral arguments. To his mind, there’s no question that gays constitute a “suspect class”—that is, a group of people with an immutable characteristic who have historically faced discrimination. Refreshingly, Posner performs a review of “the leading scientific theories” about homosexuality to illustrate that being gay isn’t a choice. (Compare this with Justice Antonin Scalia’s gay rights dissents, in which he suggests that there’s no such thing as a gay orientation at all and that “gay” people are just disturbed individuals performing debauched sex acts.)
This review is actually unnecessary, since both Indiana and Wisconsin conceded that gay people are born that way. But it serves to reinforce Posner’s analytical framework—basically, that a state can’t disadvantage a suspect class of people without a rational basis. Note that low bar: Not a compelling interest, or even a substantial one. If the states could only prove a rational interest in excluding gay people from marriage, their laws would pass constitutional muster.
He invited them to do that, and they couldn’t. Surprise, surprise – what could that rational interest possibly be?
It’s clear from his opinion that Posner has rifled through the states’ extensive briefs to find an answer to this question—and come up short. There is simply no harm, Posner writes, “tangible, secular, material—physical or financial, or … focused and direct” done to anybody by permitting gay marriage. Conservative Christians may be offended, but “there is no way they are going to be hurt by it in a way that the law would take cognizance of.” A lot of people, after all, objected to interracial marriage in 1967—but that didn’t stop the court from invalidating anti-miscegenation laws in Loving v. Virginia.
In his opinion, Posner makes these points with trenchant humor. But beneath his droll wit lies a moral seriousness that gay marriage opponents, even those on the high court, will be unable to shrug off. The modern arguments against gay marriage may be breathtakingly silly—but by mocking them, we ignore the profound harms that marriage bans inflict on gay people and their families. By placing these families at the center of his analysis, Posner restores the equal protection clause to its rightful place as the safeguard for all whom the state seeks to harm unjustly. His message for those who hope to demean gay people and their children is clear: Not on my watch.
Very satisfying.
The phrase “breathtakingly silly” reminds me of “breathtaking inanity” from another notable legal ruling.
Much like Catholics then?
*snort*
Wouldn’t it be pretty to think so?