Judge Posner Calls Bullshit on State Marriage Bans

“You asked for the truth and I told you

Through their own words

They will be exposed”

A day after a federal trial judge upheld Louisiana’s law denying marriage and marriage recognition to same-sex couples (discussed here), a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit affirmed decisions striking down Indiana’s and Wisconsin’s marriage exclusions, laws barring same-sex couples from marrying and denying recognition to those who married elsewhere.  Judge Posner’s September 4 opinion for the court in Baskin v. Bogan (opinion here) makes the Seventh Circuit the third consecutive federal appeals court to rule for marriage equality.  The pithy opinion in Baskin (for example, in explaining the background of Indiana’s 1997 reenactment of its ban on same-sex couples marrying: “The legislature was fearful that Hoosier homosexuals would flock to Hawaii to get married”) suffers from little constitutional jargon and boasts much common sense, in plain language devastating the ridiculous arguments that those defending marriage have been making that only more recently have begun to meet with the scorn they warrant.

Although recognizing that the cases before the court “formally” were about anti-gay and ‑lesbian discrimination, Posner maintained that “at a deeper level” they were “about the welfare of American children.”  This focus on children could be slightly off-putting to lesbigay persons with no children nor desire therefor.  After all, it is those adults who wish to marry a partner of the same sex against whom state marriage exclusions directly discriminate.  Nevertheless, as a gay man childless by choice, I for one am not too proud to accept marriage equality even if it rides in on a parenting bandwagon.  This lens on state marriage exclusions has significantly been foisted on courts by states, whose defenses of their discriminatory laws now largely boil down to claims of protecting children. 

Moreover, Posner does such a thorough job demonstrating just how unrelated or indeed counterproductive laws limiting marriage to different-sex couples really are to children’s welfare that his opinion could prove influential with Justice Anthony Kennedy when the Court takes up the constitutionality of state’s denying marriage to same-sex couples.  After all, Justice Kennedy expressed great concern for the plight of the children of same-sex couples at oral argument in United States v. Windsor, and his opinion for the Supreme Court in that case striking down the federal statute refusing to recognize valid marriages of same-sex couples prominently included that concern.  (Posner’s emphasis on (some of) the real underlying equality concerns in Baskin over formal constitutional doctrine could also resonate with Justice Kennedy, whose majority opinions in several “gay rights” cases are widely regarded as not closely tracking conventional doctrine.)

The court’s opinion treats the “irresponsible procreation” defense of the states’ marriage exclusions with perhaps more seriousness than it deserves; even Judge Posner’s rendering of the basis premise – the states’ “assertion that banning same-sex marriage is justified by the state’s interest in channeling procreative sex into (necessarily heterosexual) marriage” – gives it a measure of undue respect.  But don’t be fooled into thinking the court has been fooled by this risible defense; it is not.  And the opinion makes clear how laughable the court would find the argument (were the stakes not so real for all those harmed by the marriage exclusions, children and adults alike).

The opinion’s calling out of the states’ arguments in defense of discrimination range from the sublimely subtle to the unmistakably obvious.  At the former end of the spectrum, consider Judge Posner’s use of the word “brace”:  It appears twice in the opinion.  A brace is a pair, and the opinion uses the word twice, thus linking the referents.  The first time, it refers to “our brace of cases,” one appeal by Indiana and one by Wisconsin, with both states objecting to federal trial court decisions holding their marriage exclusion laws unconstitutional.  The second time the opinion uses the term, in illustrating the lack of moral weight carried by traditions just because they are traditions, it refers to presidential pardons of “a brace of turkeys” at Thanksgiving.  Thus, the opinion links the states’ defenses of their marriage laws with turkeys – which is what those defenses are, as the court’s opinion makes quite clear.

On the less subtle side:  “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,” Judge Posner writes, “is so full of holes that it cannot be taken seriously.”  The court pointedly asks why then clearly infertile heterosexually identified persons are allowed to marry when same-sex couples are categorically banned?  The state’s “involuted” (complicated, abstruse) arguments don’t work.  The suggestion that “non-procreating opposite-sex couples who marry model the optimal, socially expected behavior for opposite-sex ccouples whose sexual intercourse may well produce children” he rightly deems “a strange argument; fertile couples don’t learn about child-rearing from infertile couples.”  And the state’s retreat to privacy doesn’t save the argument particularly since Indiana chose to let first cousins marry but only at an age when women clearly were not fertile.  As Posner sums it up:  “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.”

As for the states’ “argument from the wonders of tradition” (snark!), the court dispatched it mercilessly, concluding part of its analysis:  “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, as in Loving.”

Technically, the opinion concludes that laws excluding same-sex couples from marriage should be subject to heightened judicial scrutiny, not deferential rational basis review.  It settles on that level or “tier” of scrutiny only after carefully going through factors that the Supreme Court has said are relevant to the determination (such as general irrelevance to the trait on which the discrimination was based, the trait’s immutability, a history of discrimination against the group at issue).  Would that the federal trial judge who the day before upheld Louisiana’s marriage exclusions nominally under rational basis review – though he failed to complete even that deferential scrutiny – would have done the same before rejecting heightened scrutiny.

At the end of the day, or almost the end of the opinion, the court concludes, as more and more people are realizing, "the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.  May (at least five Justices on) the Supreme Court say the same when they choose and resolve one or more marriage lawsuits, as Justice Ginsburg expects will happen by the end of June 2016, or perhaps even by the end of June 2015.