Posner’s Sloppy Sophistry—Part 1

by Ed Whelan

In judicial rulings against marriage laws, the ratio of hubris to reasoning has been very high. It’s no surprise that Seventh Circuit judge Richard Posner’s ruling yesterday against Indiana’s and Wisconsin’s marriage laws increased that ratio.

In this post, I’ll try to provide a very brief and neutral summary of Posner’s opinion. I’ll use one or more follow-up posts to offer some (non-exhaustive) substantive criticisms of Posner’s reasoning.

Posner (joined by Ann Williams and David Hamilton) rules that Indiana’s and Wisconsin’s marriage laws, which define marriage as a male-female union, violate the Equal Protection Clause. (Posner applies his own four-step analysis in lieu of what he calls “conventional” equal-protection doctrine, but he maintains that the two approaches ultimately converge.) The states’ marriage laws, according to Posner, “discriminate against a minority defined by an immutable characteristic” and are therefore “constitutionally suspect” and subject to heightened scrutiny.

Posner first addresses Indiana’s laws (pp. 14-25). According to Posner, Indiana defends its male-female definition of marriage “on a single ground, namely that government’s sole purpose (or at least Indiana’s sole purpose) in making marriage a legal relation … is to enhance child welfare.” Posner contends that Indiana “does not argue that recognizing same-sex marriage undermines conventional marriage.” Among other things, Posner opines that Indiana’s “policy towards same-sex marriage is underinclusive” because Indiana doesn’t also bar infertile couples from marrying and doesn’t have marriages expire when a once-fertile couple, as a result of age or disease, becomes infertile (p. 17). He also disputes that the state has any special interest in marriage laws that help ensure that parents care for their biological—as opposed to adoptive—children (p. 21), and concludes that Indiana “should want homosexual couples who adopt children … to be married” (p. 23 (emphasis in original)).

As for Wisconsin (pp. 25-37): Posner rejects the various arguments that Wisconsin makes. Among other things, he disputes that Wisconsin should be allowed (as the state puts it) “to act deliberately and with prudence … before transforming this cornerstone of civilization and society.” For Posner, “[g]iven how small the percentage [of gays and lesbians] is, it is sufficiently implausible that allowing same-sex marriage would cause palpable harm to family, society, or civilization to require the state to tender evidence justifying its fears” (p. 32).

Posner also states that the “discrimination against same-sex couples is irrational and therefore unconstitutional even if the discrimination is not subject to heightened scrutiny” (p. 8). He declines to reach the separate question whether the marriage laws violate the Due Process Clause.

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