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Monday, October 24, 2016

The movement for marriage equality last week received its greatest legal victory. Judge Richard Posner, of the U.S. Court of Appeals for the Seventh Circuit, wrote a powerful opinion ordering Indiana and Wisconsin to recognize same-sex marriages. In the process, he eviscerated the states’ efforts to defend their discriminatory laws.

The author matters in this case. Posner was appointed by Ronald Reagan, and he isn’t known for favoring an active judicial role or for thinking that courts should promote social change. He is also widely admired, and probably counts as the most influential lower court judge of the past 50 years. When he speaks, people listen.

To understand his opinion, it is important to distinguish among three quite different objections to laws forbidding same-sex marriage.

The first is that they interfere with the right to marry. On this view, under the Constitution’s due process clause, that right is fundamental, so states can’t interfere with it without a “compelling justification” (for example, to prevent marriages between parents and children).

The second is that because gays and lesbians have been subject to pervasive prejudice and hostility, and because sexual orientation is immutable, any form of discrimination against them is “suspect” under the equal protection clause — which means, again, that it can’t be allowed without a compelling justification.

The third, and simplest, argument is that laws against same-sex marriage lack any reasonable basis, so they violate the equal protection clause for being “irrational.”

Judge Posner embraced the second argument, but in the end, his opinion rested on the third.

Indiana offered just one rationale for limiting marriage to opposite-sex couples: essentially, that marriage is meant to enhance the welfare of children by reducing the risk that, in cases of “accidental births,” men will avoid taking responsibility for them. Marriage, Indiana argued, channels “unintentionally procreative sex” into a legal relationship, in which the biological father is required to assume responsibility. Because same-sex relationships can’t produce accidental births, there is no reason for marriage.

Posner had a field day with that argument. “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.”

Indiana’s argument was undermined by the fact that the state allows infertile couples to marry. Indeed, it allows first cousins to marry if they are over 65 years old, apparently because by that age, women are infertile.

If Indiana really wanted to address the problem of accidental births by ensuring that children are in stable homes, Posner added, it should promote, rather than forbid, same-sex marriages. After all, same-sex couples adopt children, and the state already presumes that children’s prospects are improved when their parents are married.

Wisconsin, for its part, emphasized that its prohibition was the product of the democratic process (a popular vote). Posner’s response was crisp: “Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.”

Wisconsin pointed as well to tradition, but in Posner’s view, a tradition is a fact, not a justification. Wisconsin added that it wanted to “go slow,” because same-sex marriages might transform a “cornerstone of civilization and society.” But the state provided no evidence, or any reason to believe, that allowing such marriages would transform anything.

Posner emphasized that forbidding same-sex couples from marrying “imposes a heavy cost, financial and emotional, on them and their children.” In the most original part of his opinion, he turned the child-welfare argument on its head: “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.”

Posner’s opinion is uncharacteristically lengthy, but its most memorable words are just two: “Go figure.” With each decreasingly plausible effort to defend prohibitions on same-sex marriages, that may remain the best response.

AFP Photo/Scott Olson

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  • ps0rjl

    My wife and I have been married 33 years and we are in no way threatened by same sex couples getting married. They should have the same rights as heterosexual couples. The real opposition to same sex couples getting married is rooted in religion. If religious sects of all persuasion don’t want to perform same sex marriages then they shouldn’t have to but governmental civil unions should be performed. Let religions do what they want but same sex couples should enjoy the same rights as heterosexual couples under the law.

  • ExRadioGuy15

    Remember that Federal Judge Feldman in Louisiana just upheld that state’s same-sex marriage ban and, while the decision itself is disgraceful, the reasoning behind his decision was even more of a disgrace: same-sex couples can’t conceive children naturally, so allowing same-sex marriages interferes with hetero couples’ ability to have children….
    Yes, I know…that’s a ridiculous argument. I left a message on his voice mail letting him know how disgraceful his decision and rationale behind the decision are. I won’t put the phone number to his chambers in this post, but what I will do is tell you his name, Martin L.C. Feldman, and let you do your own research online to find out that number.

    • johninPCFL

      Feldman is intentionally sending the issue to SCOTUS. He’s a coward.

  • howa4x

    What his decision really does is to end the practice of merging politics and religion into law. Marriage was defined as between a man and woman because it says so in the bible. So a country that was founded on a separation of church and state ended up adopting one of the main tenants of religion, and using it to discriminate for many decades. What surprises me is that supposedly strict constructionists like Scalia ,who opposes same sex marriage, justifies his position on the teachings of the Catholic church rather than the equal protection clause of the constitution. In fact the entire opposition to it is religiously based and groups like the Mormons helped pass the prop law in California that banned it. So finally we have impartial judicial review that will decide the outcome of same sex marriage in the country. Given Posner’s decision it will be very difficult to have the Roberts court over turn it. But then again who thought they would pass Citizens united?

    • Allan Richardson

      Ironically enough, the Hebrew Bible allows and even celebrates some instances of polygamy (the one-man and several-women kind only), while criticizing it when it gets to extremes (King Solomon, for example, with 300 wives and 700 concubines). The Christian church originally had no absolute rules on marriage, but promoted celibacy, if one could handle it, as being better than any marriage; a Deacon, according to the second century epistle writer posing as Paul, ought to be “the husband of one wife,” as if to imply that a monogamous husband would have less temptation (and more time for his duties!) than a polygamous man. And since Christianity spread faster among the working classes in the cities, few of whom could afford polygamy, the Church eventually banned it, creating the modern ideal of one man, one woman. In the tenth century, the head rabbi in the Ashkenazi (European) Jewish community “temporarily” banned polygamy (with a 1000 year expiration date, which came in 1984), in order to avoid offending Christians in one way, at least. Culture itself has essentially made “official” polygamy go away in the West, until the Mormons revived it; of course wealthy men can have “unofficial” polygamy, which some segments of society will tolerate more than others, and now “serial” polygamy, or one spouse at a time.

      Joseph Smith started the revival of polygamy by telling his one wife that he had the right to take a second wife (no discussion, only an announcement), DESPITE having written in NUMEROUS passages of his “translation” of the Book of Mormon that polygamy is an abomination in the eyes of God. His successors also ignored those passages until they wanted to make Utah a state, then they had the truth already written in the BOM “revealed” to them. Yet some Mormon splinter groups still have managed to skip all of those passages in their Bible and BOM studies, and still practice polygamy … even though only the first marriage is legally valid by public law (and I’m not sure that all of these first marriages have been through a civil marriage license application).

      • howa4x

        Great research piece!! I believe polygamy will be the next barrier to be struck down since once again the prohibitions against it are based on religion and not on the equal protections clause of the constitution. Why should government have the right to tell you who or how many people you should marry. It violates our basic right, freedom of choice. Also it would be an economic boost since there would be more people bringing income into the house, thereby being able to afford a nicer house or more cars. It would also cut the divorce rate by having more people around to absorb life’s stress. Most divorces are about sex or money and this would alleviate both. Also here is an imbalance after age 50 where there are more women than men which this would also alleviate. In fact there is far more benefits than not.
        BTW I thought Solomon only had 140 wives.

  • charleo1

    “Come mothers and fathers throughout the land
    And don’t criticize, what you can’t understand
    Your sons and your daughters are beyond your command
    Your old road is Rapidly agin’ , please get out of the new one
    If you can’t lend your hand. For the times they are a-changin’.”

    Bob Dylan: