A surprisingly sarcastic legal opinion

A three judge panel of the US Seventh Circuit Court of Appeals has unanimously struck down same-sex marriage bans in Wisconsin and Indiana. You can read the history of the case here and the opinion here.

This verdict is, nowadays, not remarkable. But what is surprising is the surprisingly strong sarcastic language used by judge Richard Posner in his opinion in dismissing the state governments’ arguments for retaining the ban. He was particularly harsh on the ‘for the sake of the children’ argument.

The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction— that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously. (p.7)

At oral argument the state’s lawyer was asked whether “Indiana’s law is about successfully raising children,” and since “you agree same-sex couples can successfully raise children, why shouldn’t the ban be lifted as to them?” The lawyer answered that “the assumption is that with opposite- sex couples there is very little thought given during the sexual act, sometimes, to whether babies may be a consequence.” In other words, Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents—model citizens really—so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure. (p.19)

To return to where we started in this opinion, more than unsupported conjecture that same-sex marriage will harm heterosexual marriage or children or any other valid and important interest of a state is necessary to justify discrimination on the basis of sexual orientation. As we have been at pains to explain, the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible. (p.38)

The states’ concern with the problem of unwanted children is valid and important, but their solution is not “tailored” to the problem, because by denying marital rights to same-sex couples it reduces the incentive of such couples to adopt unwanted children and impairs the welfare of those children who are adopted by such couples. The states’ solution is thus, in the familiar terminology of constitutional discrimination law, “overinclusive.” It is also underinclusive, in allowing infertile heterosexual couples to marry, but not same-sex couples. (p.39)

The opinion also emphasized the important fact that just because a rule or law is arbitrary does not mean that it need not be fair.

A degree of arbitrariness is inherent in government regulation, but when there is no justification for government’s treating a traditionally discriminated-against group significantly worse than the dominant group in the society, doing so denies equal protection of the laws. One wouldn’t know, reading Wisconsin’s brief, that there is or ever has been discrimination against homosexuals anywhere in the United States. The state either is oblivious to, or thinks irrelevant, that until quite recently homosexuality was anathematized by the vast majority of heterosexuals (which means, the vast majority of the American people), including by most Americans who were otherwise quite liberal. (p.24)

It is like speed limits on roads. Any given limit is an arbitrary figure. But that does not mean there should be no limits. But it does mean that the limit should be applied fairly to all. ‘Equal protection of the laws’ is a fundamental legal principle.


  1. moarscienceplz says

    And of course the right-winger’s true motivation is so transparent: They view a marriage license as a government sanction to have sex. To a right-winger all sex is icky, but since sex is required to make babies, that kind of sex is OK. But homo-sex is super icky, especially boy/boy sex – even inside their own home with the curtains drawn. Right-wingers can’t help imagining what gay couples might be doing, so the full force of the law must be used to stop what they imagine is going on.

  2. samgardner says

    I agree, moarscienceplz — in fact, it makes me wonder if right-winger’s would outlaw any sex outside of marriage at all if they could. I have a sneaking suspicion at least some of them would (though I doubt they’d want it to be a really enforced law, rather just something to make people feel extra-guilty).

    I wouldn’t call the opinion sarcastic, rather just incredulous. They did advance a pretty bad argument (not that there’s any particularly good argument available to them… ).

  3. Paulo Borges says

    The right wing with these decisions is forced to accept that homosexual behaviour is real not as they would put it a “perversion of humankind” but humankind itself.
    Since the first state approved same sex marriage, their original arguments are in shambles and hence they are becoming more and more extreme and therefore senseless. This can be seen in the radicalization of the previously “restrained” wing.

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