Ethics Hero: Judge Richard Posner

Sure, you have a right to think there's something wrong with that, but the state has no business acting as if it thinks so too.

Sure, you have a right to think there’s something wrong with that, but the state has no business acting as if it thinks so too.

Because Judge Richard Posner of the 7th Circuit Court was appointed by Ronald Reagan, he is usually describes as a conservative judge. He’s better described as an unusually smart, articulate, thoughtful and courageous judge, and in responding to oral arguments  lawyers for Wisconsin and Indiana defending their state’s marriage bans, he proved it.

I have frequently attempted to draw a distinction between those guided by archaic religious morality that causes them to regard same-sex marriage as sinful, and the attempt to use the government, which must not be guided by religion to make such marriages illegal. Morality doesn’t have to be defended by logic—God works in mysterious ways, you know—but laws do. A complete evisceration emanating from a place of authority of the specious and often absent reasoning behind gay marriage bans was much needed, and knowing that he risked criticism as a “judicial bully” for doing so with gusto, Judge Posner came through.

Here is a sampling of the barrage he placed on Indiana Solicitor General Thomas Fisher and Wisconsin’s assistant attorney general Timothy Samuelson:

  • Samuelson, trying to play to Posner’s presumed conservative soul, cited conservative deity Edmund Burke, justifying state opposition to gay marriage with “the Burkean argument, that it’s reasonable and rational to proceed slowly.” Posner was unimpresed, calling the point “feeble.” “Look, they could have trotted out Edmund Burke in the Loving case [The 1967 SCOTUS decision striking down bans on interracial marriage].  What’s the difference?  . . . There was a tradition of not allowing black and whites, and, actually, other interracial couples from marrying. It was a tradition. It got swept aside. Why is this tradition better?”  Samuelson dug himself deeper, saying,  “The tradition is based on experience. And it’s the tradition of western culture.” Posner sneered, “What experience? It’s based on hate, isn’t it?” The lawyer denied it, whereupon Posner responded, “You don’t think there’s a history of rather savage discrimination against homosexuals?”
  • Posner homed in on the impediments created for same-sex couples who adopt children. Observing that such children would benefit if their parents got the benefit of  the breaks and other legal marital benefits, he asked,  “These children would be better off if their parents could marry, no? It’s obvious.”
  • Posner noted the documented psychological stress suffered by the adopted offspring of unmarried same-sex couples, like wondering why their schoolmates’ parents were married and theirs were not. “What horrible stuff,” Posner said. What benefit to society could possibly be gained in barring gay marriage, he asked, that “outweighs that kind of damage to children?” “These people and their adopted children are harmed by your law,  Posner said of same sex couples. “The question is what is the offsetting benefit of your law. Who is being helped?” Samuelson offered the generality that “society as a whole” benefited by preserving marriage as it has long been defined. Posner asked if anyone would be harmed if same-sex couples were allowed to marry. He did not get an answer, because there isn’t one, but you would think the lawyers would have had an answer to it prepared.
  •  Posner mocked the the states’ claims that they were trying to “promote procreation”—you don’t need to be a brilliant jurist to kill this argument, because it is ridiculous— saying sharply, “You allow all these sterile couples to get married. Why are you doing that if you’re so interested in procreation?”
  • Later, he was more direct, asking, “Why do you prefer heterosexual adoption to homosexual adoption?” Fisher protested that the marriage laws were unrelated to adoption, and Posner cut him off. “You want them to be worse off!” he said.

It goes on. It would be painful to listen to lawyers being used to mop the courtroom floor like this, if the exercise wasn’t so important and revealing. Neither attorney had a compelling or persuasive argument; either they were unprepared, didn’t have the heart to do their jobs zealously, or there just aren’t good legal arguments to support the contention that these bans are constitutional. I suspect the latter is the case.

At Slate, Mark Joseph Stern has collected sound excerpts from the oral argument: Posner’s rebukes are even tougher when they are heard. All adamant opponents of same sex marriage are obligated, I think, to listen to at least these exchanges (the entire oral argument would be better) and honestly assess whether they have any rebuttals that would satisfy the judge, or the principles of fairness and logic.

If the only rebuttal available is “God says so,” I can respect that, but not as it applies to legislation. If one’s religion directs that you not associate with gays, that’s fine: you have that right. You have the right not to like them, and not to think nice things about them, and and not to watch “Modern Family.”  You even have the right to support unconstitutional measures restricting their rights, but doing so isn’t ethical. Setting out to harm gay Americans isn’t ethical, and in most situations, it is quite properly illegal. If it isn’t illegal, then it’s just cruel, and Posner does his nation and culture a service by making this undeniable.

The Supreme Court, which may well be occupied by several individuals who don’t like gays either—because God tells them so—almost certainly will follow Posner’s lead and ban the bans. At that point, it would be good for the country, our society, gays and their families for the vocal anti-gay marriage advocates to store their objections where they always belonged: in their own churches, none of which are compelled to embrace same sex unions, and in their own minds, understanding the fact that any overt discrimination—actions are unethical, opinions and beliefs are not–is indefensible.

Posner, from a position of authority and influence, made that crystal clear.



Sources: Above the Law, Slate, Josh Blackman



130 thoughts on “Ethics Hero: Judge Richard Posner

    • There is no rational reason for denying them the right. After thirty straight losses in thirty courts, you would think that the attorneys have an ethical duty to finally give up, and open up that court time for cases that deserve oral argument. That appeal should have been submitted on the briefs, at least.

      What is your reason for opposition to same-sex marriage? How does it harm you?

      I feel sorry for the attorneys. They know they have no case, and the judge knows they have no case, but they have to stand there and get crucified.

      • There is no rational reason for denying them the right.

        We agree with those courts that have found no equal-protection violation.   The state has a legitimate interest in promoting the raising of children in the optimal familial setting.   It is reasonable for the state to conclude that the optimal familial setting for the raising of children is the household headed by an opposite-sex couple.  

        In Re Marriage of J.B. and H.B. , 326 S.W.3d 654 at 675-677(Texas 5th Ct. of Appeal 2010)

        The iinstitution of marriage as a union man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis. Skinner V. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655, 1660 (1942), which invalidated Oklahoma’s Habitual Criminal Sterilization Act on equal protection grounds, stated in part: “Marriage and procreation are fundamental to the very existence and survival of the race.” This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause of the Fourteenth Amendment is not a charter for restructuring it by judicial legislation.

        Baker v. Nelson , 191 N.W.2d 185 at 187, (Minn. Sup. Ct. 1971) summarily aff’d 409 U.S. 810, 34 L.E.2d 65, 93 S Ct 37 (1972)

        Were those judges irrational?

        • Perhaps you can explain the mechanism by which banning gay marriage promotes those worthy objectives.

          For example, there could be a law prohibiting the wearing of hats on Thursdays. If it was claimed that such a law promoted the objectives you mentioned, we could reasonably ask “How?”

          Same with banning gay marriage. How does this affect the situation?

          • Those courts have held that such bans are rationally related to a legitimate government interest. “We next consider whether Texas’s marriage laws are rationally related to the goal of promoting the raising of children in households headed by opposite-sex couples. We conclude that they are. Because only relationships between opposite-sex couples can naturally produce children, it is reasonable for the state to afford unique legal recognition to that particular social unit in the form of opposite-sex marriage. ” Marriage of J.B., 326 S.W.3d at 677

        • In a word, yes.

          A lot of couples can’t have kids. Some don’t find out until after they get married. Older couples will have childless marriages by definition. Do we have to produce certificates of fertility to get married?

          You can have this debate with Jack. He’s the one maintaining that we should never let the perfect be the enemy of the good.

          The arguments for banning same-sex marriage have all been shot down, and all the attorneys (and Posner) did was waste Court time.

          • If they were all shot down, why did those two courts rule as they did?

            ” Petitioners more persuasively argue that the State’s attempt to link marriage to procreation and child-rearing is not reasonable because (1) opposite-sex couples are not required to procreate in order to marry, and (2) same-sex couples also raise children, who would benefit from the stability provided by marriage within the family.16 However, as the State notes, “[a] perfect fit is not required” under the rational basis test, and we will not overturn a statute “merely because it is not made with `mathematical nicety, or because in practice it results in some inequality.'”
            Allowing all opposite-sex couples to enter marriage under Arizona law, regardless of their willingness or ability to procreate, does not defeat the reasonableness of the link between opposite-sex marriage, procreation, and child-rearing. First, if the State excluded opposite-sex couples from marriage based on their intention or ability to procreate, the State would have to inquire about that subject before issuing a license, thereby implicating constitutionally rooted privacy concerns. Second, in light of medical advances affecting sterility, the ability to adopt, and the fact that intentionally childless couples may eventually choose to have a child or have an unplanned pregnancy, the State would have a difficult, if not impossible, task in identifying couples who will never bear and/or raise children. Third, because opposite-sex couples have a fundamental right to marry, excluding such couples from marriage could only be justified by a compelling state interest, narrowly tailored to achieve that interest, which is not readily apparent.” Standhardt v. Superior Court, 77 P.3d 451 at 462 (Ariz. Ct. of app. 2003) (internal citations omitted)

          • In your assessment, it would not be the attorneys that “wasted” the court’s time, but their client. The attorneys’ duty is to represent their client’s interests to the best of their ability, even if their client’s interests are irrational.

            • BUT the attorney may not bring an action that has no chance of success in his or her view, so if the attorney is bringing the case to trail, by definition it can’t be a waste of the court’s time by the client. The attorney is duty bound to help the client with legitimate uses of the system, not futile, stupid or wasteful ones.

          • When I typed that there was a period not a question mark. Not sure how the question mark got there.
            Your example is pretty unsettling. I’d say it’s a family with more than one problem. In any case, being opposed to something does not automatically indicate hate. Affirming that God forbids something does not mean I hate the person who does that thing.
            There is a lot of pain in that video and in the whole discussion of gay marriage. Telling the other side they are haters doesn’t do much to advance the understanding.
            I’d say there is often a lot of love that looks like hate because it’s intense. Things said in the heat of the moment between family members and posted for the world to pick apart are heartbreaking. I could see the same intense discussion happening because the person was an adulterer. Doesn’t mean there is hate there.

      • There is zero rational basis for claiming that man-man dick-in-anus depravity is even remotely equal, or ever can be, to a healthy, holy, matrimonial covenant of a man and woman. There is no rational basis for glory holes being equal to modesty and respect.

        Such futile, feeble-minded thinking is that of someone living in open rebellion against plain reality, because they hate the God that established said reality, which is readily observable even without having to discuss the particulars of said God’s full nature.

        Since children can, and often have been, hurt by the selfishness of deluded pervert adults, the attorneys have every right and duty to not let the issue die.

        And the judge is on the wrong side of eternity and of now if he interferes with the will of the voters who rightly upheld what the Heavenly Governance has already non-negotiably ruled from time immemorial.

        And same-sex pseudomarriage has resulted in a climate of extortion and fear, which has driven legitimate businesses out of business in violation of statutes against extortion. And against the 1st and 13th Amendment rights of said businesses. All business owners are now being demanded to bow to this evil political juggernaut of LGBTQ(PIZ). Including businesses that have nothing to do with marriage! Only a willing fool thinks Crooked Pseudomarriage affects nobody at large. Or pretends like those who have been hurt don’t matter.

        The judge knows he has no case deep down, but his arrogance and pomposity prevent him from admitting it.

        A moral abomination will never, ever be a civil right. Especially not when it is built on subversion of democratic process, subversion of due process, conflict of interest within the judiciary, blatant disregard for statute of law until it becomes law, and extortion of anyone who dares not bow to the agenda.

        That is not the upholding of a right. That is the establishment of a tyranny of control by perverts, and the taking away of the rights of others to disagree with the runaway train’s path.

        • You do know there isn’t a hint of an argument here, just a blanket assertion of “moral abomination, ” which means, alternatively, “God says so, so I don’t have to use my brain,” or “It’s icky…ew.

          This a fact-free hateful and homophobic rant, a gratuitously nasty one, and you’ll have to do better. It embarasses me to have garbage like this on a site bearing my name. It’s on par with the posts from the Chimpmania gang.

    • It depends on what the meaning of “like” is. I have a hard time believing that anyone is willing to make human beings miserable by law if they really like and respect them. To a gay person, “God loves you but also believes that you are an offense to nature” just doesn’t ring true. It doesn’t ring true to me, either.

        • I didn’t. Your comment then remains bewildering. We were talking about pedophiles, who seduce and recruit kids, and you said that sounded like the accusations that gays recruit kids. So what? Recruiting kids is what defines an active pedophile. It has nothing to do with gays at all.

          • You said that about polygamists, that it leads to child sexual abuse.

            ” Polygamy routinely leads to underage marriage and child sexual abuse. “- you

              • Polygamy does seem to discourage permanent same-sex relationships though.

                The most anti-gay laws on the planet are in jurisdictions where polygamy is permitted – Uganda, Nigeria, Saudi etc.

                  • I can probably cite several studies from organizations with the name Family in them that proves a link between homosexuality and child molestation.

                    I also suspect that domestic violence was much more common among homosexual couples than heterosexuals couples when anti-sodomy laws were in force.

                    • I’d love to see a study that’s worth the paper it’s printed on. How about you select the best one you can find. The best one. The gold standard. The unassailable truth. If I can find a flaw that makes the conclusion invalid, would you be willing to admit that there is no evidence of a link between homosexuality and child molestation?

                      The Regnerus study was supposedly the gold standard that finally proved that children raised by homosexual couples were worse off than children raised by heterosexual couples. It was touted by anti-gay-marriage proponents above all others. Of course, Regnerus’ methodology was incredibly, and obviously screwed up. What he really did was compare children at large to children of broken homes. Of the 274 children in the homosexual sample, only 2 of them were raised in a stable family. The others were mostly the product of opposite sex unions where the parents broke up. As opposed to the claimed and supposed conclusions, the study really suggested that we shouldn’t encourage gay people to marry the opposite sex and have kids.

              • Utah just got a portion of its anti-polygamy law struck down, which, if nothing else, made me think that those who said polygamy wasn’t next after gay marriage might want to think again. Once we open the gates to the brown, stinky tide, closing them to other “alternative” forms of marriage is a problem.

                • The freedom of association aspects of anti-polygamy laws always made them vulnerable. Polygamy will never be recognized as legitimate by the government as a form of marriage, unless ISIS takes over.

                  • In it’s own way, polygamy is nearly as wrong as deviant unions. Widespread polygamy means that somebody is going to be cut a raw deal. I can think of few better ways to insure social unrest than telling a large number of your young men that they’re too little, too late!

              • Who’s talking about “polygamous groups?” You think only a couple of Mormon splinter groups practice it? What about the Muslims in this country — some 50,000 to 100,000 and growing who have more than one wife?


                What about the polyamorous families consisting of some indeterminate number of husbands and wives?

                No one who advocates for SSM has yet been able to explain how the idea of marriage as being exclusively between a man and a woman is hateful, but the number 2 is still special, magical, sacrosanct.

                • There are more than numbers involved, and you know it. Show me polygamy involving women dominating men, and we can talk. But there isn’t any, is there, and why is that? It is a system that degrades women and children, and unlike the case of gay marriage, the data and experience is there. I doubt that the government can legally prohibit it, but it need not recognize it, and should not.

          • That’s where you’re wrong, Jack. The purpose of “gay marriage” is all about recruiting children. If not for “gratification”, then as a means of molding those helpless kids into the homosexual lifestyle by training. It’s also now a matter of numbers and political power. Deviants can’t breed, naturally. But if they can gain legal recognition as being “married”, then they can adopt. Children are their tools… one way or another. Don’t believe for a moment the popular line they propagate that pedophilism is somehow a separate abnormality. It’s all a matter of sexual deviance. All forms are interconnected. The perverts themselves know this and occasionally are caught publically acknowledging it.

            • Steven, please come to DC and I will introduce you to some gay couples who are raising children — some of them fully grown. It might shock you that all of these children are well-adjusted and heterosexual.

              On a separate note, I just don’t understand this theory. We don’t presuppose that men in heterosexual relationships will have sex with their daughters, or women with their sons.

              You are either a pedophile or you’re not. And you’re a pedophile who is attracted to same gender or opposite gender.

              • I assumed that you’d make exactly those two false arguments, Beth.

                First: When you place children under the authority and “guidance” of a homosexual couple, you are putting them right into the culture and concepts that go with it. Children WILL be effected by it to one extent or another. That’s inevitable… and the homosexuals know this as well as anyone. What you’re trying to do is brush aside the fact that child rearing in a family (or in whatever their environment) is the most telling single experience of any person’s life and will color their personality and future lives from then on. If you actually don’t think that this is destructive (even if it doesn’t show immediately), you’re whistling past the graveyard.

                Second: This is the old “redefinition” ploy that you and contending deviants have tried so often in the media… and on me! This isn’t just about homosexual vs. heterosexual. This is about deviance vs. normalcy. Deviance is not just about homosexual behavior. It can take other forms, even when the pervert himself is outwardly a respected family man. I can personally testify to that. But then again, you probably know this as well as I do.

                • Steven, here’s the thing. I was raised in a very conservative, religious family. Father was in the military, we lived on a farm, etc. I was raised with the same values that you and your ilk have been spouting here endlessly. Then I moved away from the farm to a city where I encountered many homosexuals and lesbians. And, at first, while I won’t say that I was afraid of them, I will say that it made me uncomfortable to be around them. Because I had grown up being taught that they were perverts and I seriously thought (even though I was a young adult) that they might make me gay.

                  Over time, I realized that they were exactly like me — down to the fact that they don’t discuss what goes on in their bedrooms. (Because that’s just creepy.) They wear the same clothes, have the same jobs, go to the same churches, worry about the same things as me. Twenty years later, I am proud to say that many of these “strange” people are my closest friends.

                  The only way to find this out for yourself is to actually spend time with them. My invitation remains open if you ever want to question your beliefs.

                  As to your arguments above. (1) To the extent that children being raised by same sex couples are being taught love, respect, and acceptance, then I’m all for it. Any parents that teach these values to their children are BETTER parents than the ones I had, the ones you had, and presumably better than you (assuming you have children). (2) I seriously have no idea what you are talking about. What are these forms of deviance of which you speak? I’m not being snide, I seriously have no idea what the hell you are talking about.

                  • Steven, and Steve, are fine and ethical human beings, smart too, but sadly hostage to the stereotypes of gays that we were raised on half a century ago, shadowy child-molesting predators, obsessed with sex and destined for Hell. It’s tragic. I wish I had a solution. Actually getting to know some gay Americans would help, and I’m sure they do–but what closeted gay would ever come out to face such irrational and intractable hate and contempt?

                    I’ll never forget the first time a good friend came “out” to me. He was so nervous, and made such a big deal about it that I didn’t have the heart to say–“Relax. I know. I’ve always known.”

                  • It’s more than “creepy”, Beth. It’s repugnant to every human instinct or higher motivation. And you can save your little “I was ignorant, but now I’m enlightened” penny dreadful for someone who’s willing to flip a penny. Your parents may have been a lot wiser than you could possibly imagine or care to acknowledge. And once again- don’t try that redefinition tripe on me. You know full well what deviance and perversion mean. So do your “gay friends”.

                    • “It’s more than “creepy”, Beth.”>/em>
                      She was referring to the discussion of one’s sex life in general as “creepy”, irrespective of what kind of sex.

                      “It’s repugnant to every human instinct or higher motivation.”
                      Higher motivation is indifferent to ay form of sex so long as sex does not interfere with higher purposes. Also, in the vast majority of cases the sole reason a particular form of sex exists is because of a human instinct, so saying a practiced form of sex is repugnant to every human instinct is patently incorrect. Repugnant to your instincts, perhaps, but it is highly arrogant to project your own instincts as a standard onto everyone else and brand anyone who does not share them as depraved, corrupted, or stupid.

                      “And you can save your little “I was ignorant, but now I’m enlightened” penny dreadful for someone who’s willing to flip a penny.”
                      “I was ignorant, but now I’m enlightened” stories are useful because they describe how another person who was like you came to be as they are, and shows why they think that under similar circumstances you could become like them. They can be criticized for not accounting for differences between people, but it is a bad idea to dismiss them (or anything else) out of hand, as you appear to be doing.

                      “Your parents may have been a lot wiser than you could possibly imagine or care to acknowledge.”
                      I immensely dislike the insinuation that imagination is limited in scope, but I’ll read that as “…than you are likely to imagine with your current repertoire of concepts and experiences.” However, this assertion of who is trapped in Plato’s Cave goes both ways; it could be that Beth is wiser than you realize or care to acknowledge, and from your style of discourse, I think this is the more likely option. I think it is likely that your sense of obviousness is leading you to cut corners in critical thinking and preventing you from discovering strengths in others’ points and weaknesses in your own.

                      “And once again- don’t try that redefinition tripe on me. You know full well what deviance and perversion mean. So do your “gay friends”.”
                      You’re not going to learn anything (and neither are we) if you presume that the person you’re talking to knows everything you do and is merely refusing to acknowledge it out of stubbornness. That’s incredibly arrogant and foolish. Even if we did know what you were talking about, there are many reasons to answer the question anyway. Practice maturity by indulging and humoring us. Edify whoever’s reading along that genuinely doesn’t know. Practice working out your own argument instead of taking intellectual short cuts. Don’t shy away from saying something that might sound silly when you say it out loud, if you believe it’s true. Don’t avoid serious questions about what you believe. That’s just good discussion etiquette. If you act on the assumption that the people you’re talking with are not making a good-faith effort to understand you or critically analyze their own beliefs, then the whole discussion is already useless as a tool for finding the truth.

                      “This is about deviance vs. normalcy. Deviance is not just about homosexual behavior. It can take other forms, even when the pervert himself is outwardly a respected family man. I can personally testify to that.”
                      In my experience, normality is not inherently good, and contrapositively deviation from the norm is not inherently bad. Furthermore, I assert that “other forms” of deviation are independent of and causally unrelated to homosexuality. Can you give some examples of “other forms” of deviation and why you think they are related to homosexuality?

                      This may seem like an overreaction, and it may well be one. I just don’t like to let sloppy thinking or poor communication go without comment. I’m hoping to maintain some quality standards of reasoning before we develop into an ideological Tower of Babel.

                    • First off, Poddy, I’d appreciate it if you didn’t insult my intelligence. I KNEW what she meant with her “creepy” remark. I just put my own brand on it. Okay?! Let’s not get smarmy. But, since the rest of your comments are likewise smarmy and an attempt to fend off the points with vague sophistry, I’ll just leave it at that. If you actually believe that sex exists for no purpose but pleasure and that any form of degenerate pseudo-sex- no matter how filthy and destructive- is thereby to be not only recognized, but hailed and granted legitimacy on par with normal human mating, then there’s little that can be said to you. You can talk around it all you like and make whatever claims you want, but the stark abnormality of sexuality between members of the same sex or between adults and children remains. That’s not the full scope of the horror and public danger caused by deviancy, of course, as I’ve constantly pointed out.

                    • My apologies. I did not intend to insult your intelligence. I generally assume misunderstanding rather than malicious word-twisting when someone interprets a comment differently from how it was intended.

                      It is now apparent to me that you are more likely to twist words rather than misunderstand, and that you assume that such is true of everyone else as well. That does not bode well for communication or mutual understanding.

                      On the contrary, I do not believe sex exists for any purpose at all. I believe that sexual reproduction originated randomly and became more prevalent because it made it more likely that a macroscopic species would continue to exist compared to similar species without sex, and that the pleasure associated with it arises from the same phenomenon. These causes are not the same thing as purposes; it is only conscious beings who can be motivated to act by an expected future outcome.

                      “Stark” implies obviousness. I strongly advise you to reject such an idea if you want anyone to understand your reasoning. “It’s obvious” will not convince anyone who does not think it is obvious, and there are many who do not thing it is obvious that you are right. Many think it is obvious that you are wrong, in fact.

                      On the topic of vague sophistry, what are these horrors and public dangers you keep saying you pointed out? If you don’t want to recapitulate them, can you give me a link or something? Are there any articles, or something that you said before? I’m trying to understand the paradigm where some types of sex are inherently destructive, but I’m not quite there yet. I’ll probably do some research in any case to see where you’re getting these ideas.

                    • Very cute, Poddy. I’d point out that my “twisting” of words was just an open jibe to illustrate what I considered to be a farcical statement- not an evil attempt to deceive as you have chosen to define it. By doing that, you now essentially insult the intelligence of everyone reading this thread.

                      The rest of your statement is just more sophistry, although (thankfully) not as voluminous as with your previous essay. I said “stark” because it is. Sex happened because this enhances the survival capacity of a species. It is not just a “random” event to be summarily dismissed. Mating rituals and family/clan/tribe/nation relationships that grow out of it define the human race in its outlooks, attitudes and actions. These, too, come about from that same basic biological imperative that all successful species follow- survival enhancement.

                      Perversion is a negation of all this and in just about very particular. Whenever it is allowed recognition as a legitimate human activity, it carries with it the seeds of societal disruption and degeneracy of the human spirit. Like prostitution, drug trafficking, violent crime and the other vices that have always plagued mankind, it will probably never be fully conquered. Evil exists. But evil is never avoided by redefining it or “decriminalizing” it. Unless you recognize it for what it is and oppose it on that basis, it will eventually destroy you and all you hold dear.

                    • Evil attempt to deceive? No, I never thought that. It appears you think that I intend to deceive, though, because you call my ideas sophistry rather than merely incorrect. You want me to believe you are sincere, but you call me insincere and avoid my questions (none of which are rhetorical). If I were insincere, I would have no reason to act as though you were sincere. If I were sincere, I would want you to treat me as such. The discussion doesn’t work unless we both are sincere and both presume the other to be so as well. My attempts to call you out on your arrogance and immaturity seem to be counterproductive, though, so I’ll just ignore that in the future.

                      As for your own views, they do seem to be rational and internally consistent. How do you feel about art, music, theater, and literature? How do they enhance the survival of the species?

                    • Now you resort to projection, Poddy. “Arrogance”, “immaturity”, yada yada. Take a look in the mirror if you want to find those. Then you go on with the customary “You haven’t answered my questions”, What questions? When I see a long line of ambiguous and semi-factual (at best) statements that can, with the utmost liberality, be designated as “questions”, I generally ignore them. I hardly have the time to go point by point over contrivances that have no inherent relevance. Drawing out debates by such methods is an old ploy that I’ve seen on very many occasions. If you want an honest debate, then pose a point clearly and briefly. I’m not adverse to honest debate. Nor am I above conceding a valid point when I see one. These other methods I can’t abide, as they are both useless and dishonest.

                    • Okay, I’ll keep this post simple. Anytime I say that I want to know something or that I have a question about something, or end a sentence in a question mark, it’s a question. I rarely, if ever, ask rhetorical questions. In my post before the one where you deny that I have asked you questions, I literally ended it with a question I was seriously asking you, one that I had asked before. I ask thrice now:

                      If anything irrelevant to the propagation of the species is distracting and therefore immoral, then is art immoral?

    • Not true. Be offended if you want, but if you oppress a class of people over a belief that you don’t share with everyone else, then you have an obvious dislike for them. Since same sex marriage affects opposite sex marriage in absolutely zero ways, your opposition has to be motivated by the fact that you dislike homosexuals. If there is another reason for assuming so, please enlighten us.

      • Utterly wrong. It strikes at the very heart of civilized human society. The family is the basic unit of any society worthy of the name. When you elevate a perverse coupling of any sort to the distinction of equality with natural marriage and family, you degrade the foundations of humanity and natural human values- including the sanctity of life and of children.

  1. Elena Kagan called Posner the most important legal thinker of our time, and if you have read any of his books, you know why. He admits that appellate judges routinely take outrageous liberties with the law and facts, meting out their own personal brand of “justice” under color of law.

    By what right do these men rule, Jack? Why should they be able to impose their naked will on us with impunity?

    The only time judges are honest in their treatment of the law is where they have a large audience. Judge Posner grandstands as well as anyone.

    • I like Posner; he’s among the best of tthe best. He’s not right about everything, but he doesn’t pull punches: he’s a truthteller. Not all judges are as smart, wise and careful as he is, and he’s frustrated and arrogant about it—I get that. But judges, like all leaders, are human, and we have need for more leaders and decision-makers than there will ever be people qualified by character and ability to do those jobs. Somebody has to do it, we must not tolerate incompetence, but we should fool ourselves that perfect system involving human judgment is possible.

      • The problem is, Jack… we have judges overturning what amount to election results. And for what? So a small minority of the population gets their way?

        The same leftists who have decried the Hobby Lobby ruling are celebrating and pushing having judges – which in the federal system are, for all intents and purposes, unaccountable to anyone – give them their way.

        Richard Posner may or may not be a brilliant legal mind. But he certainly comes across as arrogant here. They may well get same-sex marriage by judicial fiat… but when the fallout start to hit, the LGBT community and their allies will face much resentment for their tactics.

        • Voters can’t override the Constitution, that’s all. You know that. Hobby Lobby UPHOLDS that principle. I have a file of 16 opinions explaining why banning gay marriage is an Equal Protection violation, and so it is. I thought so from the first one I read, from Massachusetts.

          He’s arrogant as hell. He’s always arrogant. Almost all of the best judges are…power does that. He’s still right. This is an example of the Right really doing what the Left falsely claims it is doing on climate change. As Posner showed, there is no data, no rationale, no argument or statistics, to support the ban, and it is embarrassing that the opponents persist. They have faith, and that’s it. Laws don’t support faith when it involves discrimination. This is the world’s most one-sided argument, and it undermines every other position conservatives stand for to have such a fact-free, hurtful position.

          • But suppose he gets it wrong. Suppose there are unintended consequences. Posner is virtually unaccountable to the people who will be affected.

            Look at Roe v. Wade, Jack. There is a growing recognition – even among people like Ruth Bader Ginsburg – that it was bad law. The debate around abortion and “reproductive rights” has become increasingly toxic. Furthermore, new evidence and new developments in medicine allow babies born more and more pre-term to survive (around 23 weeks now). Yet making changes to reflect the new medical evidence is becoming impossible, because when legislators pass laws to reflect situations like Gosnell or the new evidence from medical research, courts cite Roe v. Wade, among other cases to block the new laws.

            Gay marriage will be no different in this regard. Doubly so when this time, there are already indications that First Amendment protections against compelled expression and coerced association are being ignored.

            How do we hold the federal judiciary responsible when they get things wrong, or when unintended consequences emerge?

            • I don’t think it’s a good comparison, IM. All of the bad consequences flowing from Roe were predicted at the time it was handed down and before. Moreover, the case involved trading off one set of rights against another. What is the set of rights being denied in the case of gay marriage? If there were reasonable unanticipated consequences, it was still the job of the advocates for the law to anticipate them…they didn’t and couldn’t, and that, as I read it, was the source of Posner’s contempt. Yoou can’t force judges to do all the work–give me something to work with, people! Thatwas his lament. In Roe, the justices had plenty, key among them the argument, never rebutted, simply rejected, that a human life is involved in the abortion equation, and that takes the conduct beyond mere privacy. What did the gay marriage opponent offer, in contrast? It’s always been this way—it’s tradition—there will be some vague damage to traditional marriage, but we can’t say what—gays can’t procreate—God says its bad, and we’re following a a 2000 year old handbook?

              The mechanism is in place to reverse decisions that we realize are wrong: Plessy, Dred Scott, etc. Posner’s opinion will be reviewed by SCOTUS, directly or indirectly.

            • It’s come to the point that law is actually made on what’s often a 5-4 vote from nine unelected jurists who are all potential despots. The rest of the huge and inherently unconstitutional system of federal judges is hardly better. These courts have already made possible other degradations of the institution of marriage and the wholesale slaughter of unborn children. Now we stand on the verge of seeing monogamous marriage equated with any sort of “partnership” and innocent children parceled out to the perverse partners for their pleasure. The only federal court mandated by the Constitution is the Supreme Court. Impeach those of SCOTUS who have acted against the Constitution and restrict the others to a 12 year term. Shut down the rest of the system and fire the judges.

        • No, the problem is that we have judges recognizing that you can’t uphold a majority vote on someone’s civil rights. You can’t continue your class distinction against other human beings who pay taxes, as you do, and contribute to society, like you do. Why would you want to? The fallout you refer to is completely up to you. We have been at the receiving end of your resentment for generations, how will winning our battle for equality make things worse? To carry resentment is a waste of energy, but do what you must.

            • Except you assume the truth that same-sex marriage is a civil right. “In legal analysis, as in mathematics, it is fundamentally erroneous to assume the truth of the very thing to be proved.” Marriage of J.B., 326 S.W.3d at 675 fn 9

                • Even the amendments that ban all benefits for same-sex couples nevertheless satisfy rational basis scrutiny. The two appellate rulings decided since Windsor/i> were divided on whether strict or rational basis applied.

                    • Courts have held otherwise regarding whether state marriage amendments that also ban civil unions satisfy rational basis scrutiny. See Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006), In Re Marriage of J.B. and H.B. , 326 S.W.3d 654 (Tx. 5th Ct. opf App. 2010)

                  • Citizens and non-citizens? In the original document (despite the contradictory language), men and women; property-holders vs. non-property holders, slaves vs free men? Various amendments rectified th situation, but there’s no gay-straight dichotomy in the founding documents.

                    Marriage is a benefit, as applied by the government. Thus it can’t be parceled out.

                    • Jack: The federal government has no inherent constitutional right to extend monetary benefits to anyone. That’s beyond the scope of its stated authority and thus, under the 10th Amendment, that power resides with the states and the people. This also extends to the “benefit” of marriage. If a state chooses- by plebiscite or legislation- to enact “gay marriage”, they have that power… idiotic as it is. But no branch of the federal government has the right to decree such measures and no state, community or church should be required to recognize it if they do.

                    • So, the federal tax benefits to straight couples…those are invalid, right? The inconsistent application of the “state’s rights” argument shows it for the rationalization it is.

          • Because the only way gay rights gets truly enforced is, to put it bluntly, have the state back what amounts to religious discrimination. Active Mormons and Catholics, not to mention members of other Christian denominations will face discrimination, especially in the field of human resources.

            Don’t believe me? Look at the case of Angela McCaskill. She was demoted for simply signing a petition to put gay marriage to a referendum.

            Furthermore, your post seems to forget one other principle that most of us learned early in grade school: Actions have consequences. If you push through what amounts to radical social change, and bypass the democratic process in doing so, there’s going to be a backlash. Especially when bullying, thought control, an thuggery have been FEATURES, not bugs, of the push for gay marriage.

            Maybe you don’t know my story with regards to this issue. I’ll lay it out this way: After Prop 8, my best friend’s wife received death threats. His personal information was illegally accessed by some people. The perps got away scot-free when the statute of limitations expired. Two temples from my religion were the targets of anthrax hoaxes. Click the link – take a good, long look at how proponents of same-sex marriage have acted.

            Just be honest – you’re okay with cutting corners. You’re okay with taking shortcuts. You don’t mind that in at least one case where a marriage amendment was struck down, the judge (Vaughn Walker) clearly had skin in the game. You also don’t care if the new push for gay marriage or other gay rights legislation leas to legalized religious discrimination.

            Let’s just put the cards on the table.

            • There are no shortcuts here, IM: the Constitution had this one settled long ago. Unfortunately, as with gender and race discrimination, the prohibition was not enforced.

              Nobody said Angela McCaskill couldn’t oppose gay marriage. They said that if you were going to argue, in effect, that gays are immoral, you can’t be in a position that involves counseling gays. I agree. Can she run Mozilla? Of course. If I go on record as opposing the eating of meat, is it discriminatory for me to be fired as head of the Beef Council? You know the answer.

              The misconduct of advocates for a just position should not, but often does, undermine the position itself. But the Constitution guarantees equal protection under the law, and that includes blacks, women, and gays. The principle does not have to be put to a vote, and, in fact, shouldn’t be. Polls show that free speech would lose in a vote. I care, because it shows how ignorant we are, but do I care that free speech is upheld in defiance of the public will? Hell no. If you want censorship, go to Great Britain.

        • Yes, they are. That is their job, IM. If Alabama (home of Lynyrd Skynyrd) passed a law making it legal to hang blacks from trees, would it be legal?

      • That we can’t expect perfect does not mean that we should tolerate plainly inadequate, and what Posner, Kagan, Kozinski, Bork, and a whole bunch of very smart academicians are saying is that it is shockingly so. In short, they are saying that judges exercise a “judicial veto” over any law they do not like, including the Constitution.

        Power without accountability? Who would be stupid enough to give that to anyone?

        • In the cases of judges, we either have “accountability” by ballot, which creates a conflict of interest, or by relying on the character of judges appointed for life. The second option isn’t perfect; the first is horrible. And those are the only two viable approaches anyone has come up with in centuries.

          Posner, Kagan, Kozinski, Bork are all smart, honorable, flawed judges who see themselves as superior to the rest. So do the rest.

          • Judges who consider themselves superior to the rest will also be the ones to legislate from the bench and place their “enlightened opinions” above existing laws or constitutions. Such men are dangerous and have no place in a position of civil authority.

            • I have yet to see a clear explanation of what “legislating from the bench” means, but this sure isn’t it. This is pure, straightforward, it means what it means Constitutional interpretation. The fact that the principles in the document were not explicitly applied to a particular issue the Founders didn’t see coming is not a justification for warping the principle to meet 18th Century misconceptions.

              • Jack: Judge Posner applied no principle of the Constitution. He certainly didn’t take any of the framers’ concepts into consideration. Where before has there been such a thing as legally recognized homosexual unions except in decadent societies on the verge of collapse? The laws were already on the books in this regard, representing the will of a great majority of American citizens. Posner chose to ignore all that; not from any moral or constitutional principle, but from his own preference, which he considered superior to all others. THAT is legislating from the bench.

    • I didn’t know Kagan praised Posner, but that’s encouraging, and it figures. So far, I am very impressed with Kagan, who is a terrific writer and has a keen legal mind. She was an excellent appointment.

    • I’m actually with you on this one, Cathi! As I see it, these hordes of unelected lifetime despots- regardless of their political leanings- are just plain unconstitutional. Any federal court below the Supreme Court itself is on shaky constitutional grounds. Federal district courts pose a danger to the Constitution itself, as it gives these persons the power to overrule legislation, plebiscites and private business on a whim. If freedom and the rule of law are to be returned to America, the entire concept of the federal judiciary must be brought back into line with the Constitution and the intentions behind it.

  2. Is it immoral to define marriage as between one man and one woman? If something is morally wrong, it is morally wrong always. And yet, our secular moral traditions lends no support to the idea that it is immoral to define marriage as between one man and one woman. No writing or publication dating from the Reformation, Enlightenment, American Revolution, or American Civil War even hints so.

    Does the definition of marriage oppress homosexuals? Is it the only possible reason for such a definition? The very first dictionary I read, the 1981 World Book Dictionary, defines marriage as “the act or fact of living together as husband and wife; relations between husband and wife; married life; wedlock. Perhaps this line of argument would have some force if the word marriage was invented in 1981 by heterosexuals to oppress homosexuals. But this definition clearly predates 1981. John Locke, one of the Enlightenment philosophers, wrote that marriage was “made by a voluntary compact between man and woman.” Locke, Second Treatise of Civil Government § 78 (1690) One hundred seventy-eight years alter, a leading law dictionary was published affirming this definition. John Bouvier, A Law
    Dictionary Adapted to the Constitution and Laws of the United States
    105 (1868) Indeed, the concept of sexual orientation itself did not exist until the late 19th century. See J. Katz, The Invention of Heterosexuality 10 (1995); J.
    D’Emilio & E. Freedman, Intimate Matters: A History of Sexuality in America 121 (2d ed. 1997) (“The modern terms homosexuality and
    heterosexuality do not apply to an era that had not yet articulated these distinctions“), cited in Lawrence v. Texas, 539 U.S. 558 at
    568-569 (2003) Clearly, the purpose of marriage was not to oppress homosexuals, any more than its purpose was to oppress airline pilots. Furthermore, the nomenclature used to describe same-sex unions is distinct from the issue of how to treat people in same-sex unions.

    Is there any difference between same-sex and opposite-sex unions? The answer is yes. There are basic biological differences between men and women. It is because of these differences that we have different words for men and women. In addition, several dating blogs highlighted the different dynamics in human pair bonding between men and women. Therefore, the dynamics of same-sex unions and opposite-sex unions are different. This is sufficient reason to use different names for same-sex unions and opposite-sex unions. Using different names to describe different things is not oppression.

    Can gay couples raise children? To the same extent that pairs of brothers and trios of sisters can raise children. Society has recognized alternate arrangements of raising children. Monasteries in medieval Europe would often raise orphans. No doubt what the monks and nuns did were admirable. Most people at the time were certain the monks and nuns in those monasteries would give all for each other, and for the orphans they raised. And yet, they were not considered the same as married couples. While society admired what they did, they still distinguished them from married couples.

    • Your initial theory that it was ever morally wrong is flawed, so the rest of your analysis is moot.

      Just because society is scared of something doesn’t mean it’s wrong. Read your Bible — you’re also not supposed to eat shrimp after sunset. That’s probably a good rule for societies that had no means of refrigeration, because eating shrimp that has been sitting around all day is a good way to die. But that doesn’t mean that eating shrimp was morally wrong 2,000 years ago.

            • I welcome any discussion of religious doctrine or religious history with you Steven.

              On another note, I am pretty sure Jesus would appreciate a good joke — as well as enjoying some tasty seafood after sunset now that we have refrigerators and freezers.

              • On a completely related note, I think I’m going into shock. I’m agreeing with Beth. On basically every point on this article. I’m equally shocked at who I’m taking that position against. Although I shouldn’t be, it’s been expressed before, but it’s always shocking to see otherwise ethical people take such a cripplingly stupid stance.

                On another completely related note: Jesus WOULD eat that shrimp. The reason that Jews won’t eat shrimp or pork or anything else good in life and Christians will is because the Bible directly contradicts itself between the new and old testaments. In the old testament, the food laws were introduced, and then in the new testament, Jesus was chowin’ down on some prawns when the followers told him he shouldn’t be doing that, and Jesus made a point of saying “Mark 7:18 And [Jesus] said to them, “Then are you also without understanding? Do you not see that whatever goes into a person from outside cannot defile him, 19 since it enters not his heart but his stomach, and is expelled?” Thus he declared all foods clean.”. Faithful scholars say that because Jesus’ take on the issue was more current and directly from the mouth of God, he took prevalence. Now if only “whatever goes into a person from outside” could be understood to include a great big juicy cock.

      • First of all, the understanding that marriage is between one man and one woman predates the concept of sexual orientation; this definition was not invented by heterosexuals to oppress homosexuals. As such, there are no writings dating back to the time of the American Civil War- let alone colonial times- arguing that the definition of marriage oppresses homosexuals.

    • When elder siblings have been forced to care for their younger siblings (as Audie Murphy did, BTW) it’s a tragic circumstance. But we praise the older brother and/or sister who find themselves in this situation and rise to it. This is a family still, struggling to remain vital and linked by bonds of blood and of love. There is no comparison between this and a pair (or more) of deviants who, by their nature, despise normality and are inclined to view the unfortunate children they’ve obtained as tools of their agenda. The likelihood that they’ll become physical tools as well is too high to ignore, much less that of their upbringing by such persons also leading them into similar perversity.

  3. Samuelson dug himself deeper, saying, “The tradition is based on experience. And it’s the tradition of western culture.” Posner sneered, “What experience? It’s based on hate, isn’t it?” The lawyer denied it, whereupon Posner responded, “You don’t think there’s a history of rather savage discrimination against homosexuals?”

    While Posner may or may not have been correct that it was based on hate (I will outline below why I doubt it), right there he was indulging in the post hoc ergo propter hoc fallacy (his bullying may have prevented a rebuttal being offered).

    Why do I doubt that causality? Mainly for two reasons:-

    – There is a significant body of Christian thought distilled as “love the sinner but hate the sin”, which shows that there is a significant driver that does not rest on this (of course, this does not show that this is all there is). The view ascribed to them as “God loves you but also believes that you are an offense to nature” would be better expressed as “God loves you but also believes that you are tempted to commit an offence against nature [which we should not endorse with the forms of marriage]”.

    – I have observed, more generally than just in this area, that persecution often does not derive from hatred but rather the other way round, as many persecuters hate to justify themselves by demonising their targets (ironically, the truly amoral have no need for this). The arrow of causality often runs the other way.

    Later, he was more direct, asking, “Why do you prefer heterosexual adoption to homosexual adoption?” Fisher protested that the marriage laws were unrelated to adoption, and Posner cut him off. “You want them to be worse off!” he said.

    Here, Posner was being inconsistent with his own arguments in the two previous points you cited. If you consider that these two areas are related and you feel that the adoptees of the unmarried are worse off than those of the married (the thrust of his views as expressed in the two previous points), then it follows that heterosexual adoption is ipso facto preferable to homosexual adoption under current conditions. The argument for married adopters runs both ways, not only to allowing homosexual adopters to marry but also to preventing homosexuals from adopting because they are unmarried. For Posner to argue as he did was to argue in a circular fashion, or close to it. (Notice, what I outlined does not specify which outcome is right, whether homosexuals should neither adopt nor marry, or whether they should marry if they adopt).

    • If only you had been one of the lawyers. I’m serious: Posner and all of us would have benefited from some pushback. Of course, it is hard to be at your best when a federal judge is bearing down on you, but that’s their job.

      1. As to your first point, I think calling it PHRPH is a stretch. Posner’s argument is sound—if experience shows that opposition to homosexuality isn’t rooted in hate, then why is the opposition so often expressed in hateful fashion. Based on hate doesn’t mean caused by hate. The cause is moral edicts based on ancient and outdated experience, and the this has led to hateful treatment, as experience has shown.

      2. In the adoption argument, I think you are being circular. Policy makes same-sex, unmarried adoption disadvantageous to the children, and you say it is reasonable to argue as a result, “See? That’s why we shouldn’t let gays adopt!” Posner is saying that the policy makers want to make conditions worse for the adoptees of same-sex marriages, because if they did not intend that, why so it? His reasoning isn’t circular as I see it. There is no other justification. that the lawyers could offer in this context.

      • Isn’t the legal question whether the government has a compelling interest in banning an activity? As I understand it, if marriage wasn’t a fundamental right, the states could find that same-sex marriage was harmful, and that would be the end of it.

        • That is correct. The state is arguing that rational basis is the correct standard. Under rational basis, a legislative choice is not subject to courtroom factfinding and “may be based on rational speculation unsupported by evidence or empirical data”, See FCC v. Beach Communications, 508 U.S. 307 at 315 (1993) the mere fact that the Supreme Court in Baker, and numerous other courts, found a rational relationship to legitimate government interest is sufficient to reverse the district court’s judgment if rational basis were the governing standard.

          (it could possibly survive heightened scrutiny, since it does not ban civil unions.)

      • Perhaps Posner, like most self-obsessed jurists, doesn’t understand that the well being of a child and the sanctity of marriage and the family trump his abstract social theories or his relegating to “hate” all those who stand for the worth of traditional values. He’s been on that bench and in a position of unassailable power for too long.

  4. Okay, the court case Michael referred to disappointed me a great deal when I read the notes. The reasoning, as far as I could tell, was that there was no real reason to deny gays the ability to marry, but the judges were not convinced that gays had a pressing enough need to marry. They refer to a conceptual association between opposite-sex marriage, bearing children, and raising children to support their argument. Presumably the conceptual association between same-sex marriage and raising children, or between being a loving couple and either kind of marriage, or between wanting to be married and being married, just wasn’t strong enough.

    I would very much like to hear a detailed description of these apocalyptic scenarios that people predict will be caused by gay marriage, considering that many states have already legalized it and appear to be doing just as well as they ever were as far as family life is concerned. Also, as Inquiring Mind pointed out, homosexuals are a small minority of the population. How much damage could they realistically do to the marriages of the majority The only concrete prediction I have heard asserted regarding gay couples adopting is that their kids will grow up not thinking gay marriage is a bad thing… which is by definition exactly as problematic as gay marriage itself is (which is, as far as I can tell, not at all) so I’m going to need more dire predictions than that, preferably specific and with the cause-and-effect spelled out.

    Also, since it’s been brought up seriously, I’m calling it out: What in the name of Neil Patrick Harris do you think the “gay agenda” is supposed to be? And for that matter, where’d you get that idea?

    • Presumably the conceptual association between same-sex marriage and raising children, or between being a loving couple and either kind of marriage, or between wanting to be married and being married, just wasn’t strong enough.

      Under rational basis scrutiny, that is all that is needed. The state only need believe that inclusion of a group into a set of benefits would not serve a legitimate state interest to the same or greater degree than including another group.

  5. That sounds very much like turning entire groups of people into second-class citizens when the state doesn’t think it will benefit from offering them the same rights that it offers to everyone else, but I’ll put that aside for now by assuming we can trust the state to factor what is in society’s best interests, which implies the best interests of the people comprising society.

    Because the history of marriage implies that it was intended to create stable families for the benefit of children (or to ally very rich and powerful families) I’ll ignore the benefits of marriage that do not pertain to children for the purposes of this argument.

    With that in mind, doesn’t the state have a powerful interest in promoting the creation of stable family units that can adopt children who would otherwise be raised in comparatively less stable foster homes? The idea that the deciding factor in allowing people to marry is whether they can create children via sex implies to me that the government assumes people are going to create children irresponsibly, and is encouraging them to tie themselves together legally through marriage so that when they do the children won’t be too badly off. If the point were to create stable families for raising children, there would be no need to restrict the institution to people who could conceive children themselves. Therefore marriage seems to me to be geared solely towards benefiting the children of people who cannot be legally prevented from having children, since that’s the only functional difference between same-sex and opposite-sex couples as far as the state is concerned.

    Long story short, I am interpreting the “no gay marriage” point of view as being based on the idea that opposite-sex couples cannot be prevented from having kids because of privacy concerns, so we help them create a stable family so their kids can be protected. Same-sex couples must adopt to have kids and can therefore be vetted beforehand, so there is no need for them to marry. Opposite-sex couples who cannot have kids are included in the institution of marriage because we by default allow opposite-sex couples to marry without checking whether they are fertile because of privacy concerns.

    Does the above description sound accurate? If so, what if an opposite-sex couple confesses to being infertile? Would their marriage be nullified? Or would it be nullified after the age of fifty? If we allow infertile couples to remain married at the expense of the state, should we not allow same-sex couples to be married as they benefit the state just as much as an infertile couple would? What if I want my biological sex to be kept private, in addition to my fertility? Then we could not presume any couple of me and another person to be infertile, so by default I would be allowed to marry them.

      • The court in Standhardt addressed that question.

        Allowing all opposite-sex couples to enter marriage under Arizona law, regardless of their willingness or ability to procreate, does not defeat the reasonableness of the link between opposite-sex marriage, procreation, and child-rearing. First, if the State excluded opposite-sex couples from marriage based on their intention or ability to procreate, the State would have to inquire about that subject before issuing a license, thereby implicating constitutionally rooted privacy concerns. Second, in light of medical advances affecting sterility, the ability to adopt, and the fact that intentionally childless couples may eventually choose to have a child or have an unplanned pregnancy, the State would have a difficult, if not impossible, task in identifying couples who will never bear and/or raise children. Third, because opposite-sex couples have a fundamental right to marry, excluding such couples from marriage could only be justified by a compelling state interest, narrowly tailored to achieve that interest, which is not readily apparent.” 7 P.3d 451 at 462

        Again, my comments are about rational basis scrutiny, which is highly deferential. Under this standard, even marriage amendments that also ban civil unions pass. See Citizens for Equal Protection, 455 F.3d 859 , Marriage of J.B., 326 S.W.3d 654

        • I formed my question after I read all that, so no, repeating that passage does not address my question at all. I have a counterpoint for each point:

          First and second, same-sex couples also have the ability to procreate via adoption or surrogate, and inquiring whether they intend to do so is a violation of their privacy. They are no different from infertile opposite-sex couples except that the state does not have to violate their privacy to determine that they must adopt (or find a surrogate) to have children. Since people are allowed to remain married even if they can only have children by adoption, I see no reason why knowing for a fact that a couple has to adopt to have children would disqualify them from marriage.

          Third, opposite-sex couples do not have a “fundamental” right to marry simply by virtue of having two different sets of genitals. They have a right to marry because the state says so. It’s a double standard to allow opposite-sex couples to marry because there is no compelling state interest not to, but to require “rational basis scrutiny” to support allowing same-sex marriage. Why not require a rational basis for opposite-sex marriage, or a compelling state interest for banning same-sex marriage?

          This “link between opposite-sex marriage, procreation, and child-rearing” doesn’t seem strong enough to base an exclusive policy on. Humans with two different sets of genitals can procreate, and they are then expected to raise the resulting offspring. That’s a connection between opposite-sex sex, procreation, and child-rearing. For the sake of argument, let’s say marriage was created to help them raise their children. That’s a connection between marriage and child-rearing. There’s no reason that those children have to be biologically theirs. They probably will be if the marriage includes two different sets of genitals, but if not, the children will probably be biologically related to only one or neither of the parents.

          Conceptual links seem tenuous at best. I prefer laws based on causality rather than on word association. Otherwise you get laws based on links between men, mental illness, and violence, or black people, poverty, and crime, or white people, wealth, and exploitation, et cetera. Discriminatory laws and double-standards thrive on links between groups of people and things we want or don’t want. I hold that we should create laws based on people’s choices and actions and other practical traits rather than their physical forms whenever possible, and that means that if we allow infertile couples to get married, we should allow all infertile couples to get married, even if it is obvious beforehand they cannot procreate by themselves.

          The court does not address my concerns at all. Could someone else please try and do better?

          • Why not require a rational basis for opposite-sex marriage, or a compelling state interest for banning same-sex marriage?

            Because same-sex marriage is not a fundamental right.

            If Minnestoa’s marriage age restrictions (which apply equally to same-sex and opposite-sex marriage) were to be challenged under the 14th amendment under either state or federal court, the analysis would be different if the plaintiffs were a same-sex couples versus an opposite sex couple. For an opposite-sex couple, the age restriction burdens the fundamental right to marry, triggering strict scrutiny. See Loving v. Virginia, 388 U.S. 1 at 12 (1967) But for a same-sex couple, no fundamental right is implicated under binding precedent, whether a state or federal forum is invoked. see Baker v. Nelson, 191 N.W.2d 185 (Minn. Sup. Ct. 1971), Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006). Thus, the constitutional analysis used by courts to determine a 14th amendment challenge to Minnesota’s marriage age restrictions would differ for a same-sex couple versus an opposite-sex couple.

            • UGH. Neither is marriage, except as part of the enumerated rights of which privacy has been specially recognized. But once the government starts giving prizes out to the married, same sex partners Do have a right to the same benefits unless the government can show a legitimate reason why it should not. The “we want to encourage child-bearing” is obviously crap.

                    • So, they make the argument because it has previously worked. Are you saying the arguers don’t actually believe the argument, that it’s just a cover for their actual beliefs?

                      Also, just because an argument has worked does not mean it isn’t obviously crap. U.S. courts have made more than a few decisions that are obviously crap.

                    • Dred Scott’s a pretty famous one.

                      It happens on a smaller scale all the time. Like the judge that approved a search warrant on Jon Daniel due to his satirical twitter account of Peoria mayor Jim Ardis. Like the Judges that order obviously unconstitutional injunctions that are prior restraints of speech.

                      In any large group of people, some of them are going to make incredibly crappy decisions some of the time. Judges aren’t magic.

                      You seem to be arguing that if there’s a difference of opinion, then neither opinion is obviously crap. That position is obviously crap.

            • What did I just say about “fundamental rights?” Are you reading my posts, or just reading the parts you quote from them? I know they’re kind of long, but you aren’t even close to addressing my concerns.

              You can’t refer to the law for justification when the question is whether the law is ethical in the first place. That’s tautological (circular reasoning.) No more citing the same court case over and over again. I read it, and I’m not satisfied. You’re going to have to use independent thought for this one, I’m afraid.

              “Because same-sex marriage is not a fundamental right.” You keep using that word. I do not think it means what you think it means.

              Opposite-sex marriage is not a “fundamental right” either because without the state to grant people the legal benefits of the marriage, marriage as we’re discussing it would not exist. It would just be people saying they are married, and same-sex couples can do that just as easily.

              What you are doing is analogous to saying a library card is a fundamental right for sighted people but not blind people because blind people can only use the audio material of the library. There is a natural association between sight, reading, and library cards. Without sight, the association is not strong enough, so the state needs a rational basis to allow you to have a library card.

                • I’ve addressed it thrice thus far, inasmuch as I can understand its incoherent logic. Each time, I pointed out that the reasoning process (to stretch the term) that the court used was inconsistent with its stated motivations. The court is applying a double standard where there is no good reason to do so, unless you admit that you want to take the position that “their genitals look the same so we already know for a fact they can’t create babies via the act of whoopee, and marriage is only supposed to be for people who can baby-whoopee” is a good reason. Of course, that position carries its own problems, but at least then we could move on from this intellectually bankrupt court case.

                  I want to read your argument in your own words, not from that quote. That way you can address the concerns I’ve already raised. If you really can’t articulate your rationale better than that court case, there’s a huge problem with this discussion.

                    • If you mean to say that “rational basis” means that the court defers to the legislature if no rational basis to do otherwise can be shown, then I think this quote attributed to former Supreme Court Justice Thurgood Marshall is relevant: “The Constitution does not prohibit legislatures from enacting stupid laws.” If your argument is that the legislature made the law and the court did not overturn it, and that therefore the law should exist, that is circular reasoning. Just because the court cannot overturn the law does not make the law good. I was assuming that we were discussing whether the law is a good idea in the first place, not whether the court can overturn it.

                      I still hold that awarding a fundamental right to one group of people and require a “rational basis that serves the interests of the state” from another group of people because the first group can reproduce sexually and the second group cannot is a double standard. If you want to make a argument that baby-making ability is an important functional difference between people and should be used to determine their rights, I would seriously address that argument. Most physiological differences are superficial, but some are important in certain contexts.

                    • The blog post was about what a court should do, as opposed to what public policy is appropriate. The actual public policy merits for recognizing same-sex unions as marriages or whatever is the subject of another blog post.

                    • “The blog post was about what a court should do…”

                      Fair enough. I assert that a court should treat the idea of a “fundamental right” as one that applies to all people by virtue of their being people, conditional only based on a person’s actions, and not conditional on the basis of physiology. I reject the idea that different groups of people defined by inborn characteristics have different fundamental rights because that is arbitrary, based on irrelevant characteristics of those people, and contradicts the meaning of fundamental.

                      Therefore, I reject the idea that opposite-sex couples have a fundamental right to benefits provided by the state but that same-sex couples do not. Any difference in benefits should be conditional on their actions or abilities of the individuals involved and should have a rational basis for how it helps the state/society.

                      I do not believe that the ability to produce babies via sex is a rational basis for determining who gets benefits and who does not, unless the government is interested in sponsoring the creation of babies but wishes to avoid sponsoring their care and upbringing. Since I’m reasonably sure the legislature intends to sponsor child-rearing in addition to, or even over and above child-bearing (that’s why foster homes get government subsidies), the court has no rational basis for not giving all these people the same set of “fundamental rights.”

                      Does that address the court’s decision?

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