The Washington Blade reports that Judge Richard Posner has essentially flip-flopped on the constitutional status of marriage definitions. As you probably read recently, Posner wrote the panel opinion for the Seventh Circuit striking down Indiana and Wisconsin’s traditional marriage definitions. The meandering 40-page opinion covers a lot of territory, ranging from psychological studies to his thoughts on parenting. Ed Whelan (Parts 1, 2, 3, and 4) and law professor Josh Blackman have already written about the opinion’s weaknesses on the merits.
Interestingly, the Blade notes that Posner was not always so confident in his views about a constitutional right to same-sex marriage:
In a 1997 book review published in the Michigan Law Review, for example, Posner was skeptical that the Constitution guaranteed same-sex marriage. The subject was “The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment” by Yale Law Professor William N. Eskridge, Jr. The book, which came out at a time when Hawaii was on track through the judiciary to legalize same-sex marriage, espouses the idea that courts must grant same-sex couples the right to marry as quickly as possible.
Although Posner acknowledges his belief that, without further study, same-sex couples should be allowed to adopt children just the same as different-sex couples, he disputes the notion that the right to same-sex marriage is guaranteed under the U.S. Constitution.
Indeed, as the Blade points out, Posner also expressed worries in a 1998 law review article entitled “Against Constructional Theory” about the inadequate factual basis for two decisions that would ultimately lay the groundwork for today’s same-sex marriage challenges. Speaking of the Supreme Court’s 1996 opinions in Romer v. Evans (1996) and United States v. Virginia (1996), Posner wrote:
My point is not so much that Romer and the VMI case [United States v. Virginia] were decided incorrectly as that the decisions are so barren of any engagement with reality that the issue of their correctness scarcely arises. It is the lack of an empirical footing that is and always has been the Achilles heel of constitutional law, not the lack of a good constitutional theory. But this raises the question of what the courts are to do in difficult constitutional cases when their ignorance is irremediable, though one hopes only temporarily so. Judges don’t yet know enough about the role of women in the military, or about the causes of homosexual orientation, to base decisions in cases such as Romer and VMI on the answers to these empirical questions.
Posner’s central point was that courts should not come up with constitutional theories without solid empirical—that is, social scientific—basis. (I’m pretty sure that’s not the sort of thing that the Constitution always requires, but let’s leave that issue aside.)
In the article, Posner ruminated at some length on the nature of opposition to “homosexual rights,” concluding that the state amendment in Romer fell “far short of [the] savagery” required to impose constitutional limitations. Posner concluded with the following:
Inevitably, the judge’s vote in such a case will turn on his values and temperament. Those judges who believe (a belief likely to reflect a judge’s values and temperament rather than a theory of judicial review) in judicial self-restraint, in the sense of wanting to minimize the occasions on which the courts annul the actions of other branches of government, will consider ignorance of the consequences of a challenged governmental policy that is not completely outrageous a compelling reason for staying the judicial hand in the absence of sure guidance from constitutional text, history, or precedent. . . . So one thing that we may hope for through the application of the methods of scientific theory and empirical inquiry to constitutional law is the eventual accumulation of enough knowledge to enable judges at least to deal sensibly with their uncertainty about the consequences of their decisions. Ultimately many of the uncertainties may be dispelled. Until that happy day arrives, the most we can realistically ask of the judges is that they be mindful of the limitations of their knowledge. And I do not mean knowledge of constitutional theory.
Posner was clearly leaving himself wiggle room on the issue, and has used it. At some point between 1998 and 2012, the Blade notes, Posner changed his mind about same-sex marriage, announcing the change in a rambling posting on his blog that cited his newfound conclusions (based in part, it seems, on a Wikipedia entry).
But Posner has done more than discover new facts that require a different conclusion. In his Seventh Circuit opinion, Posner concluded that Indiana’s marriage definition fails rational-basis scrutiny, but demanded precious little of the social science that he would have demanded from same-sex marriage activists in 1998. Indeed, he flipped the burden around entirely, ultimately concluding that the states’ arguments in favor of their definitions constituted “unsupported conjecture.”
I’ll say this: Nobody who reads a Posner opinion is going to mistake him for an originalist.