posner’s same-sex marriage ruling

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.)

Author: andrewperrin

University of North Carolina, Chapel Hill

15 thoughts on “posner’s same-sex marriage ruling”

  1. What is particularly interesting to me is that Posner is a conservative. It is fascinating to see the slippage here as, in the era of the religious right, anti-gay animosity was a cornerstone of conservatism in the United States. Over a very short period of time, this is not only not a central principal, it looks untenable altogether. Amazing, really.

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    1. Posner is a conservative in some senses, but he’s a conservative like an economist not like a Republican. During the financial crisis, he even converted to Keynesianism (at least briefly). So, I’m not that surprised – he’s not a modern movement conservative, but rather a key figure in law and economics, and the two don’t go hand in hand, especially on social issues. But I’d be very curious to know if he had issued previously rulings on related topics and, if he had, whether this opinion represents a shift for him personally.

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      1. That we talk about different kinds of conservatives now is exactly my point. Twenty years ago, the diversity of conservative voices was drowned out by a monolithic conservative Christian perspective that in many respects had anti-gay sentiment at its core. Other conservatives were pushed out of the Republican party, the mass cultural sphere shifted to reflect this type of conservatism on talk radio, Fox news and beyond, etc. I am less of an expert on the judiciary, but I do know that they weren’t doing much to upset this dominant voice of conservatism.

        When I say that anti-gay sentiment was at its core, I don’t mean to imply that everyone cared about this issue, or even that conservative leaders cared at all. What I mean is that it is around a large-scale distaste for homosexuality, as well as anti-feminism and especially abortion, were the sentiments that drew large swaths of the population into conservatism, making this shift in the cultural and political spheres possible. Back then, it wasn’t possible for a conservative of any stripe to make pro-gay statements because it would disrupt the whole enchilada. Now, this has just melted away and detached itself from “what conservatism is about.”

        So, I get it that he probably felt this way all along, but that he has this voice now, from the right, is a new and very interesting thing.

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      2. Backing up farther into history, entering the 1970s, there were “conservative” Democrats organized around racial segregation, and the alliance between religious conservatives and economic conservatives did not exist. The first round of mobilization by economic conservatives (e.g. Phyllis Schafley) to gain religious conservative support was the [women’s] Equal Rights Amendment and abortion. This was an intentional political strategy of the 1970s. You may recall that abortion was a Catholic but NOT a conservative Protestant issue in the 1970s, but become so by the 1980s, again through intentional mobilization. Abortion, not gay rights, was the big “religious” issue of the 1980s. Gay rights became the flag issue only around 1990 when Webster made it appear that affluent women’s abortion rights might be challenged (poor women’s abortion rights had already been restricted) and those Republican women who were economic but not religious conservatives threatened to leave the party.

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      3. Hi tina,

        Here are some passages to consider regarding your statement that, “Back then, it wasn’t possible for a conservative of any stripe to make pro-gay statements because it would disrupt the whole enchilada.”

        From Barry Goldwater’s obituary in the Washington Post: “During the 1990s, Mr. Goldwater spoke out in favor of allowing gays to serve in the military, and he worked in Phoenix to end job discrimination against gays. In 1994, he became honorary chairman of a drive to pass a federal law preventing job discrimination against gays.”

        From Jonathan Rauch in the New York Times: “In 1978, Ronald Reagan, the former California governor and Republican presidential front-runner, met quietly with a gay delegation. The group wanted him to come out against the so-called Briggs Initiative, which would have barred homosexuals from teaching in public schools. Mr. Reagan listened, and what he did after the meeting was not so quiet. He issued a robust statement. The initiative, he said, had ‘the potential of infringing on basic rights of privacy and perhaps even constitutional rights.’ Mr. Reagan single-handedly turned the tide against the measure.”

        So conservatism in the late 1970s to mid-1990s was not a complete monolith: it was possible for a conservative to oppose an anti-gay initiative and win the 1980 Republican nomination for president. Not that Reagan was perfect on gay rights (he wasn’t) or that Reagan did not lose conservative support over his opposition to the Briggs Initiative (I suspect that he did), but Reagan’s stance on the initiative did not appear to have had a profound influence on the enchilada.

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      4. ljzigerell, I’m not arguing that there is no complexity (though I can see how you would read my comments that way), but if you are trying to argue that no cultural shift is occuring, I will have to disagree with you.

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      5. “I’m not arguing that there is no complexity (though I can see how you would read my comments that way)…”

        This parenthetical remark makes it sound as if I chose one interpretation of your quoted statement out of a field of possible interpretations, which raises questions about why I chose the interpretation that I did. But I do not know how an independent clause that starts with “it wasn’t possible…” can be read *other than* as a statement that lacks complexity.

        There’s complexity in the remainder of your comments outside of the “it wasn’t possible…” statement, but I made no reference to the remainder of the comments.

        “…but if you are trying to argue that no cultural shift is occuring…”

        I’d love to know how my comment can be interpreted as an argument that no cultural shift is occurring. I made no statement about change in culture over time. I made no statement about modern culture, so it’s not even possible to infer my belief about cultural change over time.

        I suppose that it’s possible to make an inference about my belief about the culture a generation ago, but citation of two conservatives to support the claim that “conservatism in the late 1970s to mid-1990s was not a complete monolith” should, if anything, be read as being in agreement with your impression of the culture of a generation ago.

        I’m honestly not trying to be difficult, but my comment noted only that what was claimed to be impossible actually occurred.

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  2. To the question of a “timeless” legal regime, this is one way to answer. It is notable that Posner cites Holmes, a major figure of American legal realism. One critical element of the legal realist attack on classical legal thought is an argument about the indeterminacy of the law. Where the early realists restricted this indeterminacy to “hard case” — that is those under appellate review — the idea was developed by the critical legal studies movement to apply to all law, in part by drawing on Wittgenstein’s ideas about the problems of following rules in ordinary language. Applied to law, judicial decision making is a form of linguistic practice that is oriented to a set of pre-interpretive background assumptions. The basic idea is that “the law” never provides sufficient information to lead mechanically to a single outcome and always relies on extra-legal understandings, even if at the same time judicial decisions are encoded in various legal practices (ie. use of precedent, modes of interpretation, particular language, etc.). The law isn’t determinate (or timeless), but is a reflection of the understandings brought to bear on it by the actors in the legal game.

    While I doubt Posner subscribes to the CLS variant of legal indeterminacy, he is nonetheless a part of the legacy of realism, in the form of law and economics, which does draw on extra-legal ideas, namely economics, to justify particular constructions of the law. Posner once wrote a piece called “what am I a potted plant?” that is a critique of strict constructionism in which he embraced a version of the indeterminacy theory similar to that of some early legal realists.

    So, I’m not sure that we should see the “juggernaut” as primarily legal, with the courts leading the charge for gay marriage. It seems plausible that the real juggernaut is the rapid transformation of attitudes about gay marriage that seems be associated with the coming to adult-hood of so-called millennials. This view is consistent with the myth of rights thesis. The courts are not leading legal change, and may be better seen as facilitating or reflecting it by filtering the reading of the law through broader social changes. This, of course — and not to totally re-hash the myth of rights debate — doesn’t mean that the court decisions themselves are not monumental or of central importance, particularly to those seeking the right to marry.

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    1. That makes lots of sense to me, and thanks for the intellectual history. It’s still interesting to me that the argument itself (within the text of the decision) is full of implications of timelessness; there is mention of the fact that increasing numbers of heterosexuals support same-sex marriage, but this is offered as an aside, not as a necessary or even contributing condition to the decision itself. So on the one hand we are dealing with an entirely reasonable, realist account of the law, but on the other hand the structure of the text itself doesn’t seem to acknowledge that. Again, let me hasten to add that I have no particular background or expertise in the law, just in reading and commenting on texts and their genera.

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  3. “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 the early 1870s, the faction of the women’s suffrage movement lead by Susan B. Anthony and the NWSA argued that women already had a constitutional right to vote. The recently enacted 15th amendment guaranteed women the vote, so no new law was needed. Anthony and others attempted to vote in 1872 and were subsequently arrested and convicted. In 1875, the Supreme Court unanimously ruled that citizenship did not grant anyone, particularly women, a right to vote. The NWSA subsequently focused on a women’s suffrage amendment to the constitution, which took 45 more years to achieve. I have to say that when Prop 8 first went to court, I was pretty sure we headed down this same path.

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  4. “The courts are not leading legal change, and may be better seen as facilitating or reflecting it by filtering the reading of the law through broader social changes.”

    Well I disagree with this. If it were NOT for 2004 Goodridge v Department of Public Health in Massachusetts we would not be where we are today. And the reason we even have that case in the WIN column is because we have some Great Gay Rights Lawyers, Mary Bonauto and Evan Wolfson the top two pioneering LGBT Lawyers. You can Google them, here is one article on Mary Bonauto
    http://www.nytimes.com/2013/03/28/us/maine-lawyer-credited-in-fight-for-gay-marriage.html?pagewanted=all&_r=0

    In fact the Courts as Justice Anthony Kennedy said, “The Law can be a teacher”

    Look at the major Gay Constitutional Rights Victories and you cannot say that the Courts are separate and apart from driving the culture.

    1986
    Bowers v Hardwick Supreme Court said IT WAS Legal to criminalize gay sex 1986

    1996
    Romer V Evans filed in 1992 decided by Supreme Court 1996
    Struck down Colorado’s Constitutional Amendment that prohibiting all branches of state government in Colorado from passing legislation or adopting policies prohibiting discrimination against lesbians, gay men or bisexuals based on their sexual orientation.
    http://www.lambdalegal.org/in-court/cases/romer-v-evans

    2003
    Lawrence V Texas Filed 1998 decided 2003
    Struck down the Criminal Sodomy Laws
    http://www.lambdalegal.org/in-court/cases/lawrence-v-texas

    2003
    Goodridge v Dept. of Public Health Filed in 2001 decided 2003

    2009
    Varnum v Brien filed in 2005 decided in 2009
    Unanimous decision of the Iowa Supreme Court permitting sexual minorities to marry.

    2010
    Prop 8 Marriage case out of California decided in 2010, filed in 2009

    2013
    United States v Windsor
    Struck down a portion of the Defense of Marriage Act

    Literally hundreds of cases on adoption, parental rights,

    Generally when a Law says something is illegal we think that thing is wrong. The Law, the Courts decisions have a huge influence on our culture. The BIGGEST case was the Lawrence v Texas case.
    We have a Court case in every single State in the country that in any way restricts civil marriages by sexual minorities. Every.Single.State.

    When homosexuality was criminal, you better believe people hid it. Once it was definitely no longer a criminal offense people were more open. Even today though, surveys show 50% of sexual minorities are NOT out at their workplace which shows that stigma is alive and well. I do not believe that culture is shaping the law (totally), I believe it is the other way around, when you look a little further back into history, you see that the Law is shaping culture. Sally Ride the First American Woman in Space was a lesbian, lived with her partner (and business partner) for 26 or 28 years before she passed. Sally Ride never was out in her lifetime but she told her partner after she was gone she could do whatever she wanted. Sally would not come out as she thought that it would hurt her business of writing children’s educational science books.

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  5. I second Joseph Conti’s comment, and in that light I would like to suggest Posner’s 2005 Harvard Law Review article on the Bush v Gore decision, which he claimed as strong evidence that law is political, no way around it.

    I can’t seem to find a link to the article on the web, though I used to have one.

    In terms of sociology, Parsons’ AGIL separated law from politics. Today, I don’t think we can, for better and worse.

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