Monday, September 8, 2014
I'm a Posner Groupie
Another little known secret of mine - I am a jurist groupie. One of my favorite jurists is Richard Posner. Now, that may be because in law school I was awarded the book award (received the highest grade) in torts, and as my prize received Posner on Torts, but I don't think so. Judge Posner, on the U.S. Court of Appeals for the 7th Circuit, is possibly the most brilliant legal mind of our time. If you don't believe me, please read his recent opinion striking down Indiana and Wisconsin's gay marriage bans. No, really, stop and read it. Now. C'mon, it's only 40 pages.
What makes Judge Posner's opinion so fascinating is not just that he is a witty and engaging writer, which he is, but that he avoided the rabbit hole so many jurists before him have gone down, which is to debate the morality of homosexual vs. heterosexual marriage. Instead, he analyzed the bans for what they are - discrimination against a suspect class, an identifiable group of people against whom there has been a history of prejudice, resulting in unequal treatment harmful to them. In such a case, the analysis is "not whether heterosexual marriage is a socially beneficial institution but whether the benefits to the state from discriminating against same-sex couples clearly outweigh the harms that this discrimination imposes." Under a strict constitutional analysis, his approach is the only one which is correct.
When you look at the debate from that perspective, there's almost no way a ban on gay marriages can pass constitutional muster. Believe me, Indiana and Wisconsin tried. First, they tried the old "marriage is for the procreation of children argument." Well, then, why do they allow infertile couples to marry? Why do they allow first cousins to marry, but only after the woman has passed menopausal age? The state said that allowing non-procreative first cousins to marry provides "a model of family life for younger, potentially procreative men and women." Really? Then, they tried the child welfare argument, which goes something like this: children do better with two parents in a stable, monogamous relationship, but only if that relationship is between a man and a woman, and only if their child is their biological child. Research shows children do better with parents in a stable and committed relationship, but there is no evidence that it has to be between people of opposite sexes, or that adopted children fare worse than biological children.
But wait, it gets better, but don't listen to me, listen to Posner: " 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."
Wisconsin decided that it should argue "tradition" as a reason to ban gay marriage and to analogize the argument in favor of heterosexual only marriage to the President's pardon of the Thanksgiving Turkeys. Then, they decided to pull out the "prudent and cautious approach" card. Wait, wasn't that one used by the segregationists opposing integration? Finally, they decided that they should argue that if the state permitted gay marriage, then it would make heterosexuals less likely to marry. Of course, that argument overlooks that most opponents of gay marriage are among the largest proponents of marriage in general, and so, tend to be married.
I could go on and on. Posner's opinion strikes time and time again on a theme that is near and dear to us here in the Trenches - what is best for the children? Is it better that they have a recognized family that loves them, a family in which both parents are recognized as having rights to see them, love them, parent them and support them? Or is it preferable that children of gay unions have only one recognized parent, and the other parent have no rights as a parent? I leave you with one last gem from Judge Posner: "Consider now the emotional comfort that having married parents is likely to provide to children adopted by same-sex couples. Suppose such a child comes home from school one day and reports to his parents that all his classmates have a mom and a dad, while he has two moms (or two dads, as the case may be). Children, being natural conformists, tend to be upset upon discovering that they’re not in step with their peers. If a child’s same-sex parents are married, however, the parents can tell the child truthfully that an adult is permitted to marry a person of the opposite sex, or if the adult prefers as some do a person of his or her own sex, but that either way the parents are married and therefore the child can feel secure in being the child of a married couple. Conversely, imagine the parents having to tell their child that same-sex couples can’t marry, and so the child is not the child of a married couple, unlike his classmates." The man makes you think long and hard about what it means to be a parent and a family. His opinion should be required reading for homosexuals and heterosexuals alike. Here in the Trenches.