The Seventh Circuit appeals court ruling on Indiana and Wisconsin’s same-sex marriage bans is out, and is of interest for several reasons. It is absolutely dispositive — really no ambiguity at all. It rests on Richard Posner and colleagues’ “law and economics” paradigm instead of the more traditional rights paradigm. And finally, it is written so clearly, and with significant humor, as to be a pleasure to read. I’ll paste in some of my favorite passages below the fold.
I’ve also got a question for law-and-society and social movements people. The question is this: the legal trend toward same-sex marriage, even in hostile environments, seems nearly a juggernaut. What explains this enormous change over the course of a very short time, in the context of a legal regime that is understood to be, in a certain sense, timeless? In other words, all the materials were available for the court to find this, say, 30 years ago, but that would have been unthinkable. This seems, also, to contradict the main finding of a political science classic, The Hollow Hope, which argued that courts rarely lead social change.
Some of my favorite passages:
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.
The state should want homosexual couples who adopt children—as, to repeat, they are permitted to do—to be married, if it is serious in arguing that the only governmental interest in marriage derives from the problem of accidental births. (We doubt that it is serious.)
Indiana has not tried to explain to us the logic of recognizing marriages of fertile first cousins (prohibited in Indiana) that happen to be contracted in states that permit such marriages, but of refusing, by virtue of the 1997 amendment, to recognize same-sex marriages (also prohibited in Indiana) contracted in states that permit them. This suggests animus against same-sex marriage, as is further suggested by the state’s inability to make a plausible argument for its refusal to recognize same-sex marriage.
Tradition per se has no positive or negative significance. There are good traditions, bad traditions pilloried in such famous literary stories as Franz Kafka’s “In the Penal Colony” and Shirley Jackson’s “The Lottery,” bad traditions that are historical realities such as cannibalism, foot-binding, and suttee, and traditions that from a public-policy standpoint are neither good nor bad (such as trick-or-treating on Halloween). Tradition per se therefore cannot be a lawful ground for discrimination—regardless of the age of the tradition. Holmes thought it “revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” Oliver Wendell Holmes, Jr., “The Path of the Law,” 10 Harv. L. Rev. 457, 469 (1897). Henry IV (the English Henry IV, not the French one—Holmes presumably was referring to the former) died in 1413. Criticism of homosexuality is far older. In Leviticus 18:22 we read that “thou shalt not lie with mankind, as with womankind: it is abomination.”
Why do men wear ties? Why do people shake hands (thus spreading germs) or give a peck on the cheek (ditto) when greeting a friend? Why does the President at Thanksgiving spare a brace of turkeys (two out of the more than 40 million turkeys killed for Thanksgiving dinners) from the butcher’s knife? But these traditions, while to the fastidious they may seem silly, are at least harmless. 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. See 388 U.S. at 8–12
Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.
It is to the credit of American voters that they do not support only laws that are in their palpable self-interest. They support laws punishing cruelty to animals, even though not a single animal has a vote.
[Wisconsin’s] lawyers claim to fear the state’s being held in contempt because it doesn’t know what measures would satisfy the in- junction’s command that all relevant state officials “treat same-sex couples the same as different sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage.” If the state’s lawyers really find this command unclear, they should ask the district judge for clarification. (They should have done so already; they haven’t.)