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Reagan Appointee Vindicates Marriage Equality

September 6, 2014

Marriage equality advocates could hardly have picked a better panel of appeals judges than the panel that heard and decided challenges to same-sex marriage bans in Indiana and Wisconsin. David Hamilton, an Obama appointee, and Ann Williams, a Clinton appointee, could form a two-vote majority regardless who the third judge was.

But the third judge was Richard Posner. Posner was a liberal early in his career, clerking for the great liberal Supreme Court Justice William Brennan and working in the Lyndon Johnson administration under Solicitor General Thurgood Marshall. His politics turned conservative in reaction to what he regarded as the excesses of the late ’60s. Ronald Reagan appointed Posner to the federal Court of Appeals for the Seventh Circuit in 1981.

On the bench, Judge Posner established himself as a pragmatic and independent thinker and a judicial scholar. He is critical of the “war on drugs” and favors legalization of marijuana possession and use; he has been sympathetic to women’s right to choose; and he has characterized judicial rulings against the rights of prisoners as treating prisoners “as a type of vermin, devoid of human dignity and entitled to no respect.”

Posner’s prolific writing, combining hard-headed pragmatism, plain language, and an aversion to fads and trends, earned him wide admiration. A 2000 study found that Posner was the most often cited legal scholar of all time, with nearly twice as many citations as whoever came in second.

In recent years, Judge Posner has found himself at odds with Republican orthodoxy. In 2012, in his characteristically blunt manner, he told Nina Totenberg, “I’ve become less conservative since the Republican Party started becoming goofy.”

The Posner-Williams-Hamilton panel heard oral arguments on the Indiana and Wisconsin same-sex marriage cases on Tuesday, August 26. Last Thursday, just six work days later, the panel issued its decision: a unanimous 40-page demolition of legal opposition to marriage equality. The opinion was written by Judge Posner – as the senior member of the panel, he presumably got to decide who wrote the decision, and he assigned it to himself.

The decision is classic Posner. It has no footnotes and no section headings – two of the genetic markers of the inbred style of modern legal and judicial writing. The writing is blunt and direct, and the vocabulary is not high-fallutin’. The decision engages in no tortured discussion of legal arcana like the applicable standard of scrutiny; it engages in no angels-on-the-head-of-a-pin parsing of precedents. It is a straightforward discussion whether the legal reasoning opposing marriage equality makes sense. The decision does not require legal training or scholarship to understand; it is clear that Posner wanted to write something that any educated American could read and understand. The most demanding paragraph in the entire decision renders a layman-level summary of the thinking of John Stuart Mill, to make the point that simply being offended by someone else’s action is insufficient to make that action illegal.

My favorite passage in the decision comes at the end of Posner’s consideration of Indiana’s argument that marriage is limited to opposite-sex couples in order to protect children born from unintended pregnancies. The protection takes the form of a carrot-and-stick approach. Where a pregnancy and birth are unintended, Indiana tries to push the parents into marriage by refusing to give any legal significance or economic benefit to the relationship between the parents. And when procreating parents marry, Indiana rewards them with recognition and benefits. Same-sex couples can’t produce unintended births, so there is no need for Indiana to push them to marry, nor to reward them for marrying, since neither will promote the welfare of unintended children.

Posner toys with Indiana’s argument, and with Indiana’s responses to criticisms of its arguments, for a few pages, then brings down the boom:

“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.”

This is probably the first time I’ve seen the phrase “unwanted children by the carload” in a judicial opinion, and probably the first time I’ve seen “go figure”; it is certainly the first time I’ve seen them in the same paragraph, and that paragraph is a door-slamming conclusion to Judge Posner’s point.

Posner then ices the cake, if you’ll pardon the mixaphor, by noting a study that shows that in both Indiana and Wisconsin, same-sex couples are far more likely to adopt children than opposite-sex couples are. In other words, same-sex couples are looking after the welfare of unwanted children at a rather greater rate than opposite-sex couples are, even though it is only opposite-sex couples that create unwanted children. Accepting Indiana’s argument that children are better off if their parents, biological or adoptive, are married, Posner leads the reader to the realization that allowing same-sex marriage furthers the very purpose that Indiana claims for disallowing same-sex marriage. QED: it makes no sense.

The Seventh Circuit thus joined the Fourth and Tenth Circuits in striking down states’ same-sex marriage bans. Indiana and Wisconsin immediately promised appeals to the Supreme Court, joining appeals already filed from Oklahoma, Utah and Virginia. It is likely that other federal appeals courts will speak before the Supreme Court rules. The Sixth Circuit heard argument in a bracket of cases from Kentucky, Michigan, Ohio and Tennessee on August 6, and the Ninth Circuit is scheduled to hear arguments in cases from Hawaii, Idaho and Nevada on Monday. The Fifth Circuit briefing in a challenge to Texas’s ban on same-sex marriage will be completed this month.

The Supreme Court will convene its first conference of the 2014 – 2015 term on September 29. None of the cases from Oklahoma, Utah and Virginia is scheduled for consideration at that conference. I would expect that the Court will not be in any hurry to decide which, if any, of the marriage equality cases it will consider. Instead, I think the Court will try to wait for more decisions from the courts of appeals.

Although it takes only four justices to decide to consider a case, I think all or almost all of the justices will vote to consider marriage equality this term. The issue is front and center, legally and politically, and the Court would be much more ridiculed than praised if it tried to duck the issue, even among marriage equality advocates. That means we’ll have a Supreme Court decision on same-sex marriage, probably at the very end of the term next June.


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