Posner is my hero

A three-judge panel from the 7th Circuit Court of Appeals handed down their decision today in the same-sex marriage cases originating in Wisconsin and Indiana. They unanimously affirmed the district court’s rulings that the same-sex marriage bans are unconstitutional.

Judge Richard Posner wrote the opinion, and it’s a gem. He completely, utterly destroys the most common arguments for upholding the ban:

– upholding tradition;

– the consequences of same-sex marriage cannot be foreseen and thus the state has the right to move slowly;

– the decision to permit same-sex marriages should be left to the democratic process;

– same-sex marriage is akin to no-fault divorce, which could make marriage more fragile.

He disposes of #1 and #3 by relying on Lawrence vs. Kansas, the case that found bans on interracial marriages to be unconstitutional; it dealt with both of those issues head-on. He takes care of #4 by observing that Indiana and Wisconsin both have legalized no-fault divorce, so that can hardly be a valid point of comparison. And he deals with #2 by pointing out that same-sex marriage has been in place in other states for a while now, and all the evidence shows that it has no effect on heterosexual marriage (he also points out that Wisconsin and Indian have made no effort to collect any data at all on how same-sex marriage would affect heterosexual marriage in their respective states).

But some of his other points are even more devastating to the states’ case. My favorite is that he points out that while in general both states outlaw marriage between people related closer than second cousins, they both have explicit exceptions for first cousins when at least one of the two is permanently sterile. So they passed a law allowing one kind of couple to marry because they can’t have children, and they passed another to stop another kind of couple from marrying because they can’t have children.  He also notes that studies show the percentage of homosexual couples that adopt children is higher than the percentage of heterosexual couples.

But the heart of his opinion is to identify both the real harm done to homosexual couples and to children by banning same-sex marriage, and to show that the bans are clearly intended to be discriminatory against same-sex couples without any rational basis for the states to take such action. “Rational basis” is the most lenient test for a discriminatory law, and he found that it failed even that low bar.

In many ways, Posner’s opinion is much simpler than the other appeals court rulings to-date (though they have all overturned bans on same-sex marriage).  It’s also much easier to read, as Posner writes in English rather than legalese. It’s a fun read, too; there is the occasional grammar lesson (what’s the difference between an analogy and an identity?) and he quotes extensively from John Stuart Mill.

SCOTUSBlog has additional coverage.

Yesterday, on the other hand, a district court judge in Louisiana upheld that state’s ban on same-sex marriage, for most of the reasons that Posner and the other appeals courts have rejected.  His opinion is a little bizarre for several reasons, not the least of which is that it quote extensively from dissenting opinions in appeals court and Supreme Court decisions, rather than from the majority, controlling opinion. Louisiana is in the Fifth Circuit, where the Court of Appeals has yet to make any rulings on same-sex marriage, so this district court judge has no recent precedent he needs to follow (and goes to great lengths to argue that the WIndsor case on DOMA, which the Supreme Court decided last year, was not a ruling on states’ right to ban same-sex marriage).

The Supreme Court has not yet accepted any cases regarding state bans on same-sex marriage (other than the California one, which they decided without ruling directly on the issue of constitutionality of a state ban). There are a couple in the queue, waiting for them to decide; their first conference where they make such decisions is on September 29th.  SCOTUSblog has some discussion on how that process might go; in a nutshell, they might take one of the pending ones, they might wait for on of several others that are either waiting for appeals court rulings or are about to be appealed to the Supreme Court, or they might pass on all of them for now.  They get to be picky and decide which case, if any, has the specific issues, with the specific context, that they want to rule on. If there are conflicting opinions in various appeals courts, that would raise the chances of them taking one or more cases soon in order to resolve the conflicts, but so far all of the appeals courts have ruled the same way. And the Supreme Court is not required to make a yes/no decision on September 29th on every case in its queue; it may decide to push off them until its next conference, at which point some of the other cases are likely to also be in their queue. They could consolidate them into one case, or simply use it as an opportunity to compare them all side-by-side and make a cleaner decision about which to hear.

We’ll know more in a month.





  1. Jan says:

    Great post – definitely summed up Posner’s contempt for the Govt presentation..

    Although I will take the liberty to add the wonderful reference comparing the Govt’s insistence on clinging to the old ways, to those who would blindly cling to “cannibalism” and “foot-binding” … and of course, his dismissal of the Gov’t argument as “impossible to take seriously.”

    Not bad, overall, for a Reagan appointee!

  2. Luke Mastalli-Kelly says:

    Posner has been my favorite judge on the bench- any bench- for years, and is an old friend of my mother’s. Have you read any of his books? Highly recommended.

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