It seems just yesterday that Judge Richard Posner was excoriating the attorneys for Indiana and Wisconsin for arguing that their states prohibited gay marriages because irresponsible heterosexuals need marriage to make them more responsible for their unplanned children. Actually, it was nine days ago. Today, Posner issued a remarkable 40-page opinion for a unanimous panel (the other two judges were Ann Claire Williams and David Hamilton) striking down the states’ marriage limitations as irrational and animus-driven. (Also today, 32 states asked the Supreme Court to take up the issue of same-sex marriage this Term.)
Sidestepping the claim that bans on gay marriage violate a fundamental right, the Seventh Circuit ruled on the more defensible ground that they violate the Equal Protection Clause:
The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction— that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases. (pp. 7-8)
Putting the conclusion in more conventional constitutional-law terms, Posner thinks same-sex-marriage bans discriminate on the basis of sexual orientation (he doesn’t even mention the sex-discrimination argument), that such classifications deserve heightened judicial scrutiny, and that the states could not offer any compelling or even rational basis for their marriage limitations. While at points the decision is unclear about this, Posner notes “the ultimate convergence” of his approach with the heightened scrutiny applied by the Ninth Circuit in cases of sexual-orientation discrimination. (p. 38)
The main elements of suspect-class analysis are there. There is an undeniable history of anti-gay discrimination. Indeed, “homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world.” (pp. 10-11) Posner lists specific examples at pp. 24-25. Sexual orientation is immutable or at least “tenacious,” (p. 5) a playful Posnerism. “[T]here is little doubt that sexual orientation, the ground of the discrimination, is an immutable (and probably an innate, in the sense of in-born) characteristic rather than a choice. Wisely, neither Indiana nor Wisconsin argues otherwise. ” (p. 9) Sexual orientation is irrelevant to individual merit. And homosexuals are not so politically powerful that they don’t need judicial protection from majorities. GLBT people are, as we’ve been recently reminded, a tiny portion of the population.
But the heart of Posner’s opinion is his dismantling of the states’ argument that gay marriage must be banned because of heterosexual irresponsibility, an argument rich in irony for gay people who’ve long been accused of all kinds of irresponsibility only to be told now that they are too good for marriage. When asked how letting gay couples wed might hurt marriage as a whole, Wisconsin’s attorney replied, “We don’t know.” Indiana fared no better. Posner says it succinctly:
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. (pp. 19-20)
“Go figure” may be the single most memorable riposte to the “we-don’t-know” defense of bans on same-sex marriage.
Posner notes that Indiana refuses to recognize same-sex marriages from other states while recognizing the marriages of fertile first cousins from other states (even though, like same-sex marriages, first-cousin marriages are banned in Indiana itself). “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,” he concludes. (p. 27) For more on animus and same-sex marriage, see my article, “Windsor Products: Equal Protection From Animus.”
Judge Posner also offers responses to the other arguments for upholding the bans, including those based on tradition, caution, and deference to democratic decisions. “Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law,” he writes. The only thing the states might once have relied upon–the unadorned moral condemnation of homosexuality–has been denied them by Lawrence v. Texas. Wisconsin and Indiana did not bother with such a justification. (p. 35)
The efforts of gay-marriage opponents, backed by sociology professor Mark Regnerus, to claim that the intact marriages of biological parents are the optimal setting for child-rearing make no appearance in the decision. There’s a good reason for that. There is no proposal on the table to remove children from the happy homes of hitched heterosexuals. The question is, as Posner identifies it, what can be done to better the lives of children adopted by same-sex couples?
There are some gems in the opinion that make it good reading for lawyers and non-lawyers alike, whatever one’s view of its result. What other federal judge would ruminate about the “helper in the nest” theory as a genetic explanation for homosexual orientation? (p. 10)
Posner also has to be the first judge to suggest that allowing same-sex marriage advances the pro-life cause (p. 22), the first to suggest that bans on same-sex marriage are even more onerous than bans on interracial marriage because they allow gay people no prospect of marriage (p. 29), and the first to note that even the second-class marriages condemned in Windsor would be better than the cohabitation left to gay couples in states like Indiana and Wisconsin. (p. 39)
And I never thought I would encounter this line in a same-sex marriage opinion: “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?” (p. 29)
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 any citations), 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.
With same-sex marriage now available throughout the jurisdiction of four federal appeals courts (the 1st, 2nd, 3rd, and DC circuits), with three circuits having already ruled in favor of same-sex marriage (the 4th, 7th, and 10th), and another sure to follow (the 9th), there are only four circuits where same-sex marriage is a genuinely live issue (the 5th, 6th, 8th, and 11th).