Five days ago I read the ruling by the Louisiana federal judge Martin Feldman that supported that state's ban on same-sex marriage. Unlike many who reacted with overwhelmingly negative response, I did not. Based upon my reading, I did not think that the judge was some hate-monger or old school reactionary. At the time I wrote to a friend, "I think it will actually be good to see a ruling like this, which does adhere strictly to the existing precedents. What this will do is compel the higher courts to 1) set the level of scrutiny for cases involving same-gender loving people and 2) decide clearly on our constitutional status as a class of people. Many of the lower courts have ruled on those larger issues, and this judge doesn't think it is his authority to rule on those, so he is abiding strictly by what the higher courts have already determined." This judge basically decided that no existing precedents allowed him to overturn a democratic process enacting the ban.
Then came Judge Posner's ruling in the 7th Circuit. Since at least the mid-90's I've viewed Posner as the best judge in the United States and have lamented that he is not on the Supreme Court. He is generally a conservative (he was appointed by President Reagan) but he is also a Pragmatist and a powerful intellectual.
He lives up to his reputation as America's finest judge in this, the most entertaining and wickedly funny judicial ruling I have ever read. I read it while eating lunch in a restaurant, and I'm sure the other patrons kept looking over when I was laughing out loud wondering what I was looking at on my phone.
One might think that Posner and Feldman were examining completely different topics, as Posner focus on discrimination and whether there is some basis for it in the state's laws and Feldman focuses instead on democratic processes. Yet, Posner evicerates Feldman's way of thinking.
On the issue of democratic processes, Posner dispenses with the argument in a small paragraph:
Wisconsin’s remaining argument is that the ban on same-sex marriage is the outcome of a democratic process—the enactment of a constitutional ban by popular vote. But homosexuals are only a small part of the state’s population—2.8 percent, we said, grouping transgendered and bisexual persons with homosexuals. Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.
That final sentence dispenses with almost the entirety of Judge Feldman's ruling.
Posner's ruling is pretty simple, actually. He says it isn't even important to determine issues like level of scrutiny and whether marriage is a fundamental right, as other courts have argued. Instead, he turns the arguments of the defendant states against them and uses their own criteria to determine the case. Here is the simple conclusion:
The states’ concern with the problem of unwanted children is valid and important, but their solution is not “tailored” to the problem, because by denying marital rights to same-sex couples it reduces the incentive of such couples to adopt unwanted children and impairs the welfare of those children who are adopted by such couples. The states’ solution is thus, in the familiar terminology of constitutional discrimination law, “overinclusive.” It is also underinclusive, in allowing infertile heterosexual couples to marry, but not same-sex couples.
He arrives at that conclusion by showing the utter vacuity of every argument offered by the states. At times he is sarcastically mocking at how bad the arguments are ("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").
He begins with the empirically clear statement that the laws discriminate against a class of people that he later describes as "among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world." But do those discriminatory laws have any reason? He finds none. In fact, the supposed reasons that the states of Wisconsin and Indiana offer--focusing on providing stable relationships for parents--argue against the bans. The bans, therefore, exist for no other reason than to continue discriminating against a group of people.
Here, for example, is one of the funniest moments in the ruling:
At oral argument the state‘s lawyer was asked whether “Indiana’s law is about successfully raising children,” and since “you agree same-sex couples can successfully raise children, why shouldn’t the ban be lifted as to them?” The lawyer answered that “the assumption is that with opposite-sex couples there is very little thought given during the sexual act, sometimes, to whether babies may be a conse-quence.” 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 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.
I can imagine Justice Kennedy will write his majority opinion next year using largely the same legal arguments as Judge Posner. He will not have to determine larger issues of legal doctrine, but will simply have to apply common sense reasoning and throw out all the remaining bans.