A Ruling Worth Reading

Dish Staff —  Sep 5 2014 @ 10:57am
by Dish Staff

Yesterday, Judge Richard Posner stuck down the marriage equality bans in Wisconsin and Indiana. His ruling is getting rave reviews from the pro-equality crowd. Dale Carpenter finds “some gems in the opinion that make it good reading for lawyers and non-lawyers alike”:

In short, the opinion is a tour-de-force Posner special. It avoids constitutional-law jargon in favor of substance, omits unnecessary string citations (indeed, whole pages are free of anycitations), and eschews footnotes altogether.  It doesn’t hurt the cause of same-sex marriage that, after Learned Hand, Posner is the most influential and prolific federal judge never to serve on the Supreme Court. He’s not always right, but he’s always formidable.

Tisinai loves this part of the opinion:

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.

Dan Savage, who calls the ruling “amazing”, highlights this meatier section of Posner’s:

The harm to homosexuals (and, as 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. Because homosexuality is not a voluntary condition and homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world, the disparagement of their sexual orientation, implicit in the denial of marriage rights to same-sex couples, is a source of continuing pain to the homosexual community. 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 respects, notably in the care of their adopted children, like other married couples.

Garrett Epps wonders how Justice Kennedy will react to Posner’s arguments:

Posner’s major appeal is to an issue dear to Kennedy’s heart: the welfare and dignity not of gays and lesbians but of their children. “Formally these cases are about discrimination against the small homosexual minority in the United States,” Posner writes. “But at a deeper level, as we shall see, they are about the welfare of American children.” Allowing same-sex marriage will allow the adopted children of gay couples equal status with their schoolmates; it will increase their material welfare by allowing benefits and tax deductions; it will increase the number of loving families available to adopt unwanted children; and it will reduce abortion: “The more willing adopters there are, not only the fewer children there will be in foster care or being raised by single mothers but also the fewer abortions there will be.”

It is a roaring steam engine of an opinion, at times exhilarating and at other times puzzling. Is it likely to change minds? No. Its flip dismissal of the political process argument makes it less persuasive than it could have been; Feldman did have a point, even if Posner (and I) think the counterargument is much stronger.

But Ari Ezra Waldman thought the ruling was fitting:

When we started on this journey, states were arguing that gay marriage would do manifest, irreparable damage to the institution of marriage. No one was ever sure what that meant, but even that argument has been sidelined to the trash. By now, the arguments make literally no sense.

Judge Posner, a lion of the appellate judiciary, has had enough. His playful opinion is his way of expressing frustration at the continued life of these anti-equality bromides.

Reflecting on the slew of recent marriage equality decisions, Marc Solomon hopes SCOTUS to rule in favor of equality, and soon:

Just last week, Arizonan Fred McQuire lost his life partner of 45 years—and husband of less than one—to pancreatic cancer.  But because Arizona continues to discriminate, he wasn’t allowed even to submit the paperwork for his deceased husband’s VA burial benefits, nor would the state issue him a death certificate for his husband, let alone let him be identified on it as the spouse. Instead, the state insists on listing each of them as “never married.”  As a result, McQuire—even as he grieves his profound loss—was forced to file a lawsuit to fight for what the Constitution says he deserves, the dignity and legal respect of marriage.

Every day that goes by while discrimination persists means children throughout the country whose families are denied protections and treated as second-class, and parents and grandparents who don’t live to see the chance to dance at their child’s wedding.