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.