In an exhilarating takedown of Indiana and Wisconsin's prohibitions, Judge Richard Posner rules there isn't. But will he persuade anyone?
Competing with William Faulkner, Flannery O’Connor once wrote, is an inevitably losing proposition: “Nobody wants his mule and wagon stalled on the same track the Dixie Limited is roaring down.”
Federal District Judge Martin Feldman may feel like that luckless muleskinner today. His decision affirming a state ban on same-sex marriage appeared Wednesday. On Thursday, the Dixie Limited, in the person of Judge Richard Posner of the Seventh Circuit Court of Appeals, ran over him going the other way.
In an opinion for a unanimous three-judge panel, Posner upheld a district-court ruling that struck down same-sex marriage bans in Indiana and Wisconsin. The opinion is a Posnerian tour de force: clear, clever, thorough, witty, and—well—odd. It replies to most of the arguments Feldman accepted, including the most important one—that the courts should defer to the political process in matters of social policy.
At this point, we know all the arguments against marriage equality: Procreation. Tradition. Morality. Caution about social change. Democratic process. Feldman’s opinion had a kind of listless, get-off-my-lawn tone. You kids and your same-sex marriage, can just count me out, he seems to be saying. Procreation, slippery slope, democratic process, can I go now?
Posner’s tone is not fatigue but Five-Hour Energy. He does not rebut arguments against same-sex marriage, but rather (to paraphrase an old Southern threat) beats them to a pulp, puts the pulp into a sack, and then beats on the sack.
Same-sex marriage bans, he writes, violate the 14th Amendment’s prohibition on “deny[ing] ... the equal protection of the laws.” He chides the state defendants for ignoring the long history of discrimination against LGBT people:
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. Homosexuals had, as homosexuals, no rights; homosexual sex was criminal (though rarely prosecuted); homosexuals were formally banned from the armed forces and many other types of government work (though again enforcement was sporadic); and there were no laws prohibiting employment discrimination against homosexuals.
Sexual orientation, he writes, has all the earmarks of what constitutional lawyers call a “suspect classification,” meaning a trait like race, religion, or sex that automatically triggers judicial suspicion when employed in law. Such classifications, he says, are based on “immutable or at least tenacious characteristic of the people discriminated against (biological, such as skin color, or a deep psychological commitment, as religious belief often is, both types being distinct from characteristics that are easy for a person to change, such as the length of his or her fingernails).”
But Posner does not push ahead of the Supreme Court by holding that restrictions on LGBT people should receive “heightened scrutiny” like those based on race, religion, or sex. Instead, he focuses on the reasons the two states gave for discriminating against LGBT people in marriage, which strike him as not just irrational but nonexistent. “The governments of Indiana and Wisconsin have given us no reason to think they have a ‘reasonable basis’ for forbidding same-sex marriage,” he writes.
Posner finds the states’ justifications so irrational that he almost becomes unhinged himself. Is the ban in place to encourage responsible procreation by heterosexuals? “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."
Is the ban really about “procreation” at all? Posner dives deep into a truly obscure issue: Why does Indiana permit first cousins to marry, but only if they are too old to have children? Why, for that matter, does the state refuse to recognize out-of-state same-sex marriages, but does grant recognition to out-of-state marriages between cousins? “Indiana has not tried to explain to us the logic of recognizing marriages of fertile first cousins (prohibited in Indiana) that happen to be contracted in states that permit such marriages, but of refusing ... to recognize same-sex marriages (also prohibited in Indiana) contracted in states that permit them.”
Opposite-sex marriage is traditional? “Tradition per se has no positive or negative significance. There are good traditions ... bad traditions that are historical realities such as cannibalism, foot-binding, and suttee, and traditions that from a public-policy standpoint are neither good nor bad (such as trick-or-treating on Halloween). Tradition per se therefore cannot be a lawful ground for discrimination—regardless of the age of the tradition.”
“Caution” in allowing social change? Stubbornness is prejudice, not caution: “At the oral argument the state’s lawyer conceded that he had no knowledge of any study underway to determine the possible effects on heterosexual marriage in Wisconsin of allowing same-sex marriage.”
“Protecting” traditional marriage? “What Wisconsin has not told us is whether any heterosexuals have been harmed by same-sex marriage.”
The democratic process? “Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.”
Just as Feldman seemed to tailor his opinion to Justice Anthony Kennedy, the Supreme Court swing vote, Posner's major appeal is to an issue dear to Kennedy's heart: the welfare and dignity not of gays and lesbians but of their children. “Formally these cases are about discrimination against the small homosexual minority in the United States,” Posner writes. “But at a deeper level, as we shall see, they are about the welfare of American children.” Allowing same-sex marriage will allow the adopted children of gay couples equal status with their schoolmates; it will increase their material welfare by allowing benefits and tax deductions; it will increase the number of loving families available to adopt unwanted children; and it will reduce abortion: “The more willing adopters there are, not only the fewer children there will be in foster care or being raised by single mothers but also the fewer abortions there will be.”
It is a roaring steam engine of an opinion, at times exhilarating and at other times puzzling. Is it likely to change minds? No. Its flip dismissal of the political process argument makes it less persuasive than it could have been; Feldman did have a point, even if Posner (and I) think the counterargument is much stronger.
Posner is always the Dixie Limited. Whether Anthony Kennedy is ready to ride remains to be seen.
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