Bench Memos

Posner’s Sloppy Sophistry—Part 2

As Bench Memos readers should know by now, Seventh Circuit judge Richard Posner has amply demonstrated that he can’t be trusted to fairly present arguments that he is contesting. That flaw deeply infects his ruling yesterday (in Baskin v. Bogan) against the marriage laws of Indiana and Wisconsin.

Consider, for example, Posner’s claim that Indiana’s responsible-procreation rationale can’t explain why it allows infertile opposite-sex couples, but not same-sex couples, to marry. Posner spends several paragraphs (pp. 17-20) developing his claim. But he doesn’t fairly present Indiana’s rebuttal points.

Posner purports to present, and respond to, what he calls Indiana’s “involuted pair of answers.” First, he writes:

[Indiana] points out that in the case of most infertile heterosexual couples, only one spouse is infertile, and it argues that if these couples were forbidden to marry there would be a risk of the fertile spouse’s seeking a fertile person of the other sex to breed with and the result would be ‘multiple relationships that might yield unintentional babies.’ … But what is most unlikely is that the fertile member, though desiring a biological child, would have procreative sex with another person and then abandon the child—which is the state’s professed fear.” [Italics in original; underlining added.]

Posner’s account of Indiana’s supposed argument is oddly garbled, as it’s difficult to see how a person “seekingto breed” with another person “might yield unintentional babies.” Posner’s last sentence indicates that he evidently imagines that the state’s “professed fear” is limited to abandonment of a “desir[ed] … biological child.” But as Indiana puts it, “marriage [of opposite-sex couples] in childless circumstances discourages the partners from engaging in seriatim sexual relations with others that may produce unintended children.” In other words, when a heterosexual couple is infertile but one of the spouses is fertile, the marital norm of fidelity operates to help ensure that there are no unintended children produced outside that marital relationship. Posner doesn’t acknowledge the point, much less respond to it.

Second, Posner presents Indiana’s argument that “non-procreating opposite-sex couples who marry model the optimal, socially expected behavior for other opposite-sex couples whose sexual intercourse may well produce children.” Posner briskly dismisses that as a “strange argument”:

[F]ertile couples don’t learn child-rearing from infertile couples. And why wouldn’t same-sex marriage send the same message that the state thinks marriage of infertile heterosexuals sends—that marriage is a desirable state?

But there is no reason to read Indiana to be arguing that the modeling behavior that “non-procreating opposite-sex couples” provide concerns child-rearing. As the passage I quote above makes clear (and as ought to be fairly implicit in any event), Indiana understands the modeling behavior to include marital fidelity. And there is plenty of reason, as the New York Times tells us, to think that marriages of same-sex couples are much less likely to model that behavior.

Further, while Posner acknowledges one paragraph later that it “would be considered an invasion of privacy to condition the eligibility of a heterosexual couple to marry on whether both prospective spouses were fertile” and that fertility is often not knowable, he inexplicably fails to apply those insights to the question whether Indiana can explain why it allows opposite-sex couples (irrespective of fertility) to marry, but not same-sex couples.

Posner is also wrong to contend (and to find it “[n]otabl[e]”) that Indiana supposedly “does not argue that recognizing same-sex marriage undermines conventional marriage.” Indiana in fact argues at length (see, e.g., its opening brief at pp. 13-14, 38-42) that the “constitutional argument for same-sex marriage … has no limiting principle” and is ultimately “an argument against marriage.” (Emphasis in original.)

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