On Thursday last week (September 4, 2014), the infamous Judge Richard Posner, writing for the 7th Circuit Federal Court of Appeals, known for being one of the leading "legal thinkers" in America and the number one most cited legal scholar, issued a witty, biting, deeply moral masterpiece striking down Indiana’s and Wisconsin’s gay marriage bans. This is an opinion that the Supreme Court of the United States, and maybe even some other, more conservative jurists will listen to! Maybe the Texas Supreme Court is reading this opinion right now and thinking about deciding the Texas state case In re J.B. out of the Dallas court on the validity of same-sex marriages and the right of Texas to grant a same-sex divorce.
The opinion was released only 9-days after the arguments in the case. That has to be some sort of record in the appellate world!
You remember this Posner guy… He’s been a commentator on the Lewinsky scandal, the 2000 presidential election controversy, the 2003 invasion of Iraq, and others. Although branded largely as a conservative, he’s written in favor of the protection of abortion rights and in favor of the decriminalization of marijuana. Read more about him on Posner’s Wikipedia page.
So, back to the same-sex marriage debate…. Posner has some really good zingers in his opinion:
· "Our pair of cases is rich in detail but ultimately straight-forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rational 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." (page 7)
· "We’ll see that the governments of Indiana and Wisconsin have given us no reason to think they have a ‘reasonable basis’ for forbidding same-sex marriage." (page 2)
· "The sole reason for Indiana’s marriage law, the state’s argument continues, is to try to channel unintentionally procreative sex into a legal regime in which the biological father is required to assume parental responsibility…. Government has no interest in recognizing and protecting same-sex marriage, Indiana argues, because homosexual sex cannot result in unintended births. As for the considerable benefits that marriage confers on the married couple, these in the state’s view are a part of the regulatory regime: the carrot supplementing the stick. Marital benefits for homosexual couples would not serve the regulatory purpose of marital benefits for heterosexual couples because homosexual couples don’t produce babies." (page 15)
· Both states argued that their electorates should have the right to continue policies based on centuries of tradition. Posner responds, "Tradition per se has no positive or negative significance. There are good traditions [and] bad 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 tradition…. But these traditions, while to the fastidious they may seem silly, are at least harmless. If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a harmless anachronism; it is a violation of the equal protection clause." (page 28-29)
· To the states’ argument that the issue should be left to democratic majorities in each state, Posner responded, "Minorities trampled on by the democratic process have recourse to the courts; the recourse is call constitutional law." (page 37)
· "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." (page 19)
· "No evidence is presented by the state to support this contention. It is true that an increasing number of heterosexuals support same-sex marriage; otherwise 11 states would not have changed their laws to permit such marriage (the other 8 states that allow same-sex marriage do so as a result of judicial decisions invalidating the states’ bans). No inference of manipulation of the democratic process by homosexuals can be drawn, however, any more than it could be inferred from the enactment of civil rights laws that African-Americans ‘are politically powerful out of proportion to their numbers.’ It is to the credit of American voters that they do not support only laws that are in their palpable self-interest. They support laws punishing cruelty to animals, even though not a single animal has a vote." (page 37-38)
· "And there is little doubt that sexual orientation, the ground of the discrimination, is an immutable (and probably an innate, in the sense of in-born) characteristic rather than a choice. Wisely, neither Indiana nor Wisconsin argue otherwise." (page 9)
· "The harm to homosexuals (and, we’ll emphasize, to their adopted children) of being denied the right to marry is considerable. Marriage confers respectability on a sexual relationship; to exclude a couple from marriage is thus to deny it a coveted status." (page 10)
· "Not that allowing same-sex marriage will change in the short run the negative views that many Americans hold of same-sex marriage. But it will enhance the status of these marriages in the eyes of other Americans, and in the long run it may convert some of the opponents of such marriage by demonstrating that homosexual married couples are in essential responds, notably in the care of their adopted children, like other married couples." (page 11)
Of course, the states will appeal this to the United States Supreme Court. Out of 21 federal courts that have ruled on bans on same-sex marriage, 20 have held the laws unconstitutional and one in Louisiana has upheld the state’s restrictive law based on state’s rights to decide the issue for themselves. But, this opinion is priceless! And may show in due time to be the loud voice of reason.
Read the entire 40 page opinion in Baskin v. Bogan here.
Read New York Times article Gay-Marriage Bans Fall in Wisconsin and Indiana
Read Mark Joseph Stern of Slate’s Judge Posner’s Gay Marriage Opinion is a Witty, Deeply Moral Masterpiece
Read Ben Dreyfuss of MotherJones’ This Judge Just Said Everything You Want to Say to the Anti-Gay Marriage Crowd, But Better
UDPATE: Indiana and Wisconsin reacted very quickly, filing their petitions in the United States Supreme Court on Tuesday, only five days after the Court of Appeals’ opinion was issued. With these two new cases, there are seven cases pending in the U.S. Supreme Court on this topic.
These seven pending cases raise both of the constitutional questions that have arisen in lower courts in a wave of decisions over the past fifteen months: do states have the authority to refuse to allow gay and lesbian couples to marry, and do they have the authority to refuse to recognize same-sex marriages performed for their residents in other states. The Court has the option of taking on either or both issues, and it also has the option of putting off any consideration for the time being, despite the heavy pressure from virtually everyone involved in the cases, who contend that the Court should not wait any longer to decide. None of the cases is a mandatory appeal. It would be highly unusual, however, for the Court to pass up all of the cases, when everyone is championing review now.
If the Court opts to take on the controversy anytime up to mid-January, a final ruling could be expected before the new Term is completed late next June.
These cases have all arisen very quickly since the United States v. Windsor decision last year. In that ruling, the Justices struck down a key part of the federal Defense of Marriage Act that limited federal marital benefits only to married opposite-sex couples. Although the Court said it was not then ruling on state authority to deny marriage rights or recognition of existing marriages of same-sex couples, most of the lower court rulings since then have used reasoning from the Windsor decision in striking down state prohibitions.
Decisions are now pending in the Sixth and Ninth Circuits, and the Fifth Circuit also has a case pending from Texas, but no hearing date has been scheduled.