Bench Memos

Posner’s Sloppy Sophistry—Part 4

See Parts 1, 2, 3

Adding to my Part 2 post, I’ll provide here some further examples of the abysmal quality of Judge Posner’s reasoning in his ruling last week against Indiana’s and Wisconsin’s marriage laws:

1. Indiana explains in its brief that civil marriage exists as “a means of enticing individuals whose sexual intercourse may produce children to enter voluntarily into a relationship that the government recognizes and regulates for the sake of protecting and providing for any children the couple’s sexual union may produce.” In response, Posner contends that Indiana’s position (a) should require it “not [to] allow an infertile person to marry” and, further, (b) should require it to “make marriage licenses expire when one of the spouses (fertile upon marriage) became infertile because of age or disease” (p. 17). I’ve already dealt in my Part 2 post with the first half of Posner’s contention. Let’s consider here the second half.

Consider how utterly crackpot Posner’s assertion is. By his illogic, once, say, a woman with young children goes through menopause, Indiana would supposedly be required to conclude (consistent with its rationale for marriage) that her existing marriage no longer operates “for the sake of protecting and providing for” those children.

Posner’s proposition is too stupid for words. Only someone who doesn’t think clearly would entertain the thought for a moment. Only someone who writes faster than he thinks would put it on paper. Only someone who doesn’t carefully review what he has written would publish it. And only someone who wields judicial power recklessly would put it in a judicial opinion.

(By using the example of a woman “with young children” to illustrate the patent idiocy of Posner’s proposition, I of course don’t mean to imply that the proposition would have force if it were limited to couples with adult children.)

2. Purporting to address Indiana’s argument, Posner finds it baffling that heterosexuals who “get drunk and pregnant, producing unwanted children,” receive the “reward” of being “allowed to marry,” whereas same-sex couples who “do not produce unwanted children,” receive the “reward” of being “denied the right to marry.” This is what triggers Posner’s widely quoted “Go figure” snark. (Pp. 19-20.) But Posner simply isn’t confronting Indiana’s argument, which has nothing to do with awarding marriage as a prize for good behavior. Indiana’s responsible-procreation rationale fully explains the differential treatment that Posner objects to.

3. Posner contends that, since Indiana “permits joint adoption by homosexuals,” and since it believes that marriage is better for children, Indiana “should want homosexual couples who adopt children … to be married” (p. 23 (emphasis in original)).

It’s remarkable that Posner, one of the founders of the law-and-economics movement, could make such a simpleminded static argument that fails to take into account some major trade-offs. In particular, it’s entirely reasonable for Indiana to conclude that severing in law (as the redefinition of marriage would do) the conceptual link between marriage and responsible procreation would, over time, dramatically increase the number of out-of-wedlock births—and, “[g]iven how small the percentage of [gays and lesbians] is” (p. 32), far exceed any incremental increase in the adoptive capacity of same-sex couples. (Posner contends that Indiana’s claim that “conventional marriage is the solution to [the] problem of [out-of-wedlock births] is belied by the state’s experience with births out of wedlock” (p. 23). But the fact that the situation has worsened over time doesn’t mean that it couldn’t get worse still.)    

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More generally, I’ll call attention to law professor Josh Blackman’s posts. Blackman (who supports redefining marriage to include same-sex couples) marvels at how Posner’s opinion “reads like one, long Posnerian stream of consciousness.” He calls Posner’s “free-wheeling approach” to judicial precedent “really, really flimsy” and finds the whole opinion, “from a jurisprudential perspective, … a mess.”

Yes, this is the same opinion that some on the Left are absurdly hailing as “a masterpiece of … logic.” 


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