It took 9 days for Judge Richard Posner to write his unanimous opinion striking down the marriage equality bans in Indiana and Wisconsin. And you can see the tone of the decision in one of its more pointed sentences:
Our pair of cases is rich in detail but ultimately straight-forward to decide. 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.
It wasn't long ago that marriage equality cases were achingly long affairs. Judges would have to pay homage to the deeply held opinions on both sides and recognize that many people vehemently disagree. But to Judge Posner, the cases are straight-forward.
It also wasn't long ago that we were debating whether being gay is an immutable characteristic. Even our progressive allies were not staking out ground on this subject, instead deciding cases without entering the minefield of heightened scrutiny. To Judge Posner, it's a throwaway line.
And it wasn't long ago that conservatives were making the "promiscuous heterosexual" argument to any judge who would listen. To Judge Posner, it doesn't pass the laugh test.
We expected a win at the Seventh Circuit. My colleague and distinguished law professor Dale Carpenter had a similar perspective. But few could have imagined the grand slam Judge Posner penned over the last few days.
A brief summary and analysis follows AFTER THE JUMP…
The decision is really a must read.
Once a cudgel used against us, children were a force counseling in favor of marriage equality (Page 2). The promiscuous heterosexual argument is rejected with Posnerian flair, toward the bottom of Page 19.
In other words, 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 re-ally—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 tomarry. Go figure.
Richard Posner just won the internet.
But the opinion is more than just snark. Nearly 10 pages are predominantly focused on child-related arguments, a fact that is in no small part due to the amicus brief of the Family Equality Council (Kudos!) and the fact that Indiana could think of nothing else to say. Indiana thinks it needs a ban on gays marrying because it has a legitimate interest in encouraging children to be raised in opposite-sex parent households. Gay couples, by virtue of being non-naturally procreative, do not create the kind of social benefit (or need for government regulation) that opposite-sex couples do (Page 17).
Of course, Judge Posner poked all sorts of holes in this argument at the hearing and reviews them again, including wondering why infertile couples still enjoy the right to marry even though they don't contribute to the child game either. He calls the state's responses "involuted," an awesome word that means pretzel-like or complicated. And involuted is the perfect word for Indiana's response that the state allows infertile first cousins to marry as a "model" for younger, fertile couples. Posner writes at 19:
Indiana has thus invented an insidious form of discrimination: favoring first cousins, provided they are not of the same sex, over homosexuals. Elderly first cousins are permitted to marry because they can’t produce children; homosexuals are forbidden to marry because they can’t produce children. The state’s argument that a marriage of first cousins who are past child-bearing age provides a “model [of] family life for younger, potentially procreative men and women” is impossible to take seriously.
This is a pattern. Judge Posner raises an issue. The states' lawyers offer a ridiculous, strange response. Judge Posner calls them out on it.
Another example: Judge Posner notes that children are being adopted by loving gay couples at record numbers and many of those children are precisely the products of heterosexuals getting "drunk and pregnant" and making the choice to give up a child to better parents. Those better parents are often gay. And yet the state wants to make life harder for those children by denying their parents the stability and protection of marriage.
I could go on. As I argued after the hearing, the central take away from this decision is the sheer craziness of the anti-equality arguments left against us. We thought they were bad before. 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. We agree.
Read the ruling HERE.
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Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently pursuing his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.
