Judge Richard Posner, moderate conservative of the Seventh Circuit, has espoused the occasional nutty idea. He also has an ego roughly the size of the Midwest. But this week, he delivered a beautifully-argued opinion laced with righteous sarcasm striking down the gay marriage bans in Indiana and Wisconsin. Let's admire it together.
The lawyerly gloss on the decision, Baskin vs Bogan et. al., is that Posner and his two co-judges ruled against the ban because they determined that these ban discriminate against same sex couples "along suspect lines," making them subject to strict scrutiny. But Posner wants to get out from under "formidable doctrinal terminology" rather early on:
We'll be invoking in places the conceptual apparatus that has grown up around this terminology, but our main focus will be on the states' arguments, which are based largely on the assertion that banning same-sex marriage is justified by the state's interest in channeling procreative sex into (necessarily heterosexual) marriage. We will engage the states' arguments on their own terms...
In other words: buckle up.
Posner does not, to say the least, find Indiana or Wisconsin's "own terms" remotely intelligent. In short, he does not buy the "what about the children??!?!?!" argument they try to make.
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.
He is especially disdainful of Indiana's attempt to defend this position, leading to disgusted asides:
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.
The 38-page decision is laced with demolishing paragraphs of that kind, and stuffed with empirical studies about child welfare and gay discrimination to support its points.
And Posner ends on this:
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.
And Posner, evidently, had been itching to get this out of his system. He delivered the decision just a week after the oral arguments and he was (appropriately!) snappish and grumpy during those too. Please be our guests, Judge, to do this again; should the Supreme Court get any fancy ideas about narrowing the effects of Windsor it's be great to have more such barnstormers on hand to whip at, say, Justice Samuel Alito.
[Image via AP.]