So it’s nearly 2015, but there’s still plenty of anti-gay-marriage law across this great nation. Because children?
Nah — because bullshit. This week, the 7th Circuit Court of Appeals affirmed district court decisions striking down Indiana’s and Wisconsin’s same-sex marriage bans. Judge Richard Posner’s ruling is an amazing indictment of said bullshit enshrined as discriminatory legislation.
Here are three reasons why Posner’s ruling — which you should totally read right now — is fucking awesome.
1. Resoundingly rebuts the states’ arguments (such as they are)
This is maybe more basic good legal opinioning than straight-up awesome, but the ruling does its main job of laying out and eviscerating the states’ arguments.
Indiana apparently had only one broad argument: “that government’s sole purpose (or at least Indiana’s sole purpose) in making marriage a legal relation (unlike cohabitation, which is purely contractual) is to enhance child welfare.”
The ruling dispenses with this argument’s logic in a clear and entertaining way. For example, we learn that while Indiana prohibits gay marriage ostensibly because gay couples can’t procreate, Indiana also allows first cousins older than 65 to marry:
But then how to explain Indiana’s decision to carve an exception to its prohibition against marriage of close relatives for first cousins 65 or older—a population guaranteed to be infertile because women can’t conceive at that age? If the state’s only interest in allowing marriage is to protect children, why has it gone out of its way to permit marriage of first cousins only after they are provably infertile? The state must think marriage valuable for something other than just procreation— that even non-procreative couples benefit from marriage. …
Indiana has thus invented an insidious form of discrimination: favoring first cousins, provided they are not of the same sex, over homosexuals. Elderly first cousins are permitted to marry because they can’t produce children; homosexuals are forbidden to marry because they can’t produce children. The state’s argument that a marriage of first cousins who are past child-bearing age provides a “model [of] family life for younger, potentially procreative men and women” is impossible to take seriously.
Or take this genius argument from Indiana’s lawyer, and Posner’s assessment of the argument’s validity (paragraph breaks added):
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 re- ally—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.
Meanwhile, Wisconsin had three official arguments (plus one more that was “sensibly dropped” in the appeal):
First, limiting marriage to heterosexuals is traditional and tradition is a valid basis for limiting legal rights. Second, the consequences of allowing same-sex marriage cannot be foreseen and therefore a state should be permitted to move cautiously—that is, to do nothing, for Wisconsin does not suggest that it plans to take any steps in the direction of eventually authorizing such marriage. Third, the decision whether to permit or forbid same- sex marriage should be left to the democratic process, that is, to the legislature and the electorate.
Suffice it to say, Posner did not find these arguments legally compelling.
2. Reveals anti-gay-marriage legal “thinking” as op-ed venting
The ruling’s introduction does something kind of amazing: It calls out that the fancy legal frameworks and jargon typically invoked in these rulings — “a formidable doctrinal terminology—the terminology of rational basis, of strict, heightened, and intermediate scrutiny, of narrow tailoring, fundamental rights, and the rest” — are basically unnecessary given the shoddy arguments at hand.
We’ll be invoking in places the conceptual apparatus that has grown up around this terminology, but our main focus will be on the states’ arguments, which are based largely on the assertion that banning same-sex marriage is justified by the state’s interest in channeling procreative sex into (necessarily heterosexual) marriage. …
Our pair of cases is rich in detail but ultimately straightforward to decide. 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.
The conversational tone and lack of jargon — “so full of holes that it cannot be taken seriously” — basically says: the game’s up, you clowns. The scaffolding of your anti-gay discrimination is nothing more than op-ed bullshit, so we can dispense with the respectful seriousness and expose it for what it is.
After the full rebuttal (see Fucking Awesome Thing 1, supra), Posner reiterates Fucking Awesome Thing 2:
More than unsupported conjecture that same-sex marriage will harm heterosexual marriage or children or any other valid and important interest of a state is necessary to justify discrimination on the basis of sexual orientation. As we have been at pains to explain, the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.
Not “they fail to stand up to strict scrutiny.” Not “the states have failed to narrowly tailor the laws.”
Nope: “totally implausible.” Come on, you clowns.
3. Calls bullshit on anti-gay legislation-as-moralizing
Posner does one other neat thing. While acknowledging that “Wisconsin like Indiana does not base its prohibition of same-sex marriage on morality,” the ruling includes a section that exposes how, broadly, anti-gay legislation is fundamentally a moral argument masked as a legal one — and thus is legally untenable.
First, he quotes Supreme Court Justice Samuel Alito’s dissent in United States v. Windsor:
“At present, no one—including social scientists, philosophers, and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be. And judges are certainly not equipped to make such an assessment. … [O]thers explain the basis for the institution in more philosophical terms. They argue that marriage is essentially the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so.”
Then Posner calls bullshit on this line of thinking, and on its place in legal argument:
What follows, if prediction is impossible? … [C]an the “long-term ramifications” of any constitutional decision be predicted with certainty at the time the decision is rendered? …
There is a difference, famously emphasized by John Stuart Mill in On Liberty (1869), between the distress that is caused by an assault, or a theft of property, or an invasion of privacy, or for that matter discrimination, and the distress that is caused by behavior that disgusts some people but does no (other) harm to them. … To be the basis of legal or moral concern, Mill argued, the harm must be tangible, secular, material—physical or financial, or, if emotional, focused and direct—rather than moral or spiritual. …
Similarly, while many heterosexuals (though in America a rapidly diminishing number) disapprove of same-sex marriage, there is no way they are going to be hurt by it in a way that the law would take cognizance of.
Finally, he sticks a shiv into the Alitos of the world:
Wisconsin doesn’t argue otherwise.
In other words: Even Wisconsin — which can’t muster a single somewhat-close-to-legit legal argument — understands that moral arguments masked as legal ones aren’t sufficient to enshrine anti-gay discrimination in the law in two thousand fucking fourteen. Come on, you clowns.