Appellate Judge Richard Posner: daring the Supreme Court to disagree with his ruling that same-sex marriage bans are irrational and senseless.
  • Rich Hein / Sun-Times Media
  • Appellate Judge Richard Posner: daring the Supreme Court to disagree with his ruling that same-sex marriage bans are irrational and senseless.

Last Saturday I went to two weddings. It was a beautiful day and they made me so happy I was ready for two more.

Both were in churches, and it occurred to me that it had been years since I’d been to a wedding in a house of God or to one I’d describe as primarily religious. Others had been spiritual occasions yes, but religious ones not so much. The difference is the difference between a ceremony and a rite. The holiness of the occasion was particularly palpable at the morning wedding, and that was appropriate, unsurprising, and what the crowd wanted. Peter is a minister’s son, and his marriage to Bill was the first gay wedding I’m sure any of us had ever attended. If the presence of God hadn’t been insisted on, we’d have felt it missed the point.

They’ve lived in Wisconsin for some time, but because gay marriage remains forbidden in that state, they returned to Lakeview and were married in the Lutheran church that Peter and my wife once attended together, and by the minister who was the church’s pastor back in that day. At that time the church’s social activism cost it members. Now old friends who’d been through those wars saw one another for the first time in years.

“We’ve been waiting 21 years,” Peter said before the service began.

Illinois is one of 19 states in which gay marriage is legal, but that’s only been true since June. In Wisconsin, meanwhile, a constitutional ban on gay marriage was ratified by voters in 2006. The world is a lot less approving of Peter and Bill’s relationship than the friends who attended their wedding are, and the scriptural passages read during it struck a double note, thanking those who supported them while asking the world to be kind.

“To love your neighbor as yourself is more important than all burnt offerings and sacrifices.” And “All the commandments are summed up in this one command: ‘Love your neighbor as yourself.’ Love does no harm to a neighbor.” And “Now these three remain: faith, hope, and love. And the greatest of these is love.”

The line there most likely to widen the eyes of a lawyer would be Love does no harm to a neighbor. Though he didn’t quote it, the thought was at the core of Appellate Judge Richard Posner’s opinion last week as a panel of three judges from the Seventh Circuit unanimously upheld lower court rulings that struck down prohibitions on same-sex marriage in Indiana and Wisconsin—Peter and Bill’s home state.

Invoking John Stuart Mill, Posner addressed the question of harm. “Mill argued that neither law (government regulation) nor morality (condemnation by public opinion) has any proper concern with acts that, unlike a punch in the nose, inflict no temporal harm on another person without consent or justification. . . . 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. Wisconsin doesn’t argue otherwise. Many people strongly disapproved of interracial marriage, and, more to the point, many people strongly disapproved (and still strongly disapprove) of homosexual sex, yet Loving v. Virginia invalidated state laws banning interracial marriage, and Lawrence v. Texas invalidated state laws banning homosexual sex acts.”

Lawrence (2003) declared that what consenting adults do behind closed doors is no one’s business. Posner surmised that because of Lawrence, neither Wisconsin nor Indiana had based its prohibition of same-sex marriage on morality. And let me add—not on scripture, either. The wedding of Peter and Bill reminded me that the alliance of church and state in creating and defending the modern institution of marriage had bent law into an unholy mess—what business is it of government, anyway, to tell any church what its rites can and cannot be?

Anyway, God, scripture, and even religion are terms that didn’t get a mention in Posner’s opinion; the states have beat a retreat to the last legal ground that isn’t under water: homosexual marriage is bad for children (in some way the states don’t explain); and deference must be paid to tradition.

LGBTQ columnist Mark Joseph Stern read Posner’s opinion and was beside himself. “The opinion is a masterpiece of wit and logic that doesn’t call attention to—indeed, doesn’t seem to care about—its own brilliance,” he wrote for Slate. “Other, more legacy-minded judges have attempted to sketch out a revised framework for constitutional marriage equality, granting gay people heightened judicial scrutiny and declaring marriage a fundamental right. But Posner isn’t interested in making new law: The statutes before him are so irrational, so senseless and unreasonable, that they’re noxious to the U.S. Constitution under almost any interpretation of the equal protection clause.”

Other federal judges have reached the same conclusion Posner reached, and recently one did not: the day before we heard from Posner, Judge Martin Feldman upheld Louisiana’s ban on same-sex marriage. Gay marriage, he reasoned, represents a wrenching change in the evolution of marriage in America, a change accompanied by a “depth of passion” that “defies definition.” We have only a “blurry understanding” of where this change is taking us, but “perhaps in a new established point of view, marriage will be reduced to contract law, and, by contract, anyone will be able to claim marriage. Perhaps that is the next frontier, the next phase of some ‘evolving understanding of equality.'”

But if it is, Feldman believed new marriage (to coin a term) must first emerge triumphant from “the arena of democratic debate. Free and open and probing debate. Indeed, fractious debate.” In other words, this is too important to be decided by judges.

Presumably Feldman would have been more sympathetic to Wisconsin’s argument than Posner was. “Go slow,” advised Wisconsin in defense of its constitution. Posner noted that and, continuing to quote the state against itself, went on, “Maintaining the prohibition of same-sex marriage is the ‘prudent, cautious approach,’ and the state should therefore be allowed ‘to act deliberately and with prudence or, at the very least, to gather sufficient information—before transforming this cornerstone of civilization and society.'”

Posner is old enough to remember an age in which wise old men counseled that going slow was the only proper way to pursue an integrated society (or at least one with equal accommodation laws). And he went on to say, “There is no suggestion that the state has any interest in gathering information. . . . At the oral argument the state’s lawyer conceded that he had no knowledge of any study underway to determine the possible effects on heterosexual marriage in Wisconsin of allowing same-sex marriage.”

Permit someone to go slow and if he doesn’t move at all he’s going only a little slower than you suggested.

I believe Mark Joseph Stern got a little carried away. He found values in Posner’s opinion that contradict each other. On the one hand, “Posner is not writing for Justice Anthony Kennedy [the likely swing vote when the Supreme Court takes up the question of same-sex marriage], or for judges of the future, or even for gay people of the present. He is writing, very clearly, for himself.” On the other, “Posner may have actually written the one gay marriage ruling that the Supreme Court takes to heart.” That’s because Posner cuts to the chase: “The statutes before him are so irrational, so senseless and unreasonable, that they’re noxious to the U.S. Constitution under almost any interpretation of the equal protection clause.”

This seems naïve. Posner knows the same-sex marriage debate is going to wind up before the Supreme Court. And he knows the more powerfully he argues that same-sex marriage bans are irrational and senseless, the harder it will be for the Court’s conservative bloc to disagree (or agree but defer to the states anyway).

There is, for instance, Posner’s feud with Justice Antonin Scalia, his old University of Chicago colleague. It goes back at least to 2012, when Scalia published a book that accused Posner of “odious cynicism” toward legal principles Scalia cherished and Posner published an essay in the New Republic titled “The Incoherence of Antonin Scalia.” But let’s go back further, to 2008, when Posner, in the New Republic, trashed Scalia’s majority opinion in a historic Second Amendment case. “The range of historical references in the majority opinion is breathtaking,” Posner allowed, “but it is not evidence of disinterested historical inquiry. It is evidence of the ability of well-staffed courts to produce snow jobs.”

Scalia insisted in 2012 that whatever Posner had to say rolled right off his back: “He’s a court of appeals judge, isn’t he? He doesn’t sit in judgment of my opinions as far as I’m concerned.”

Which is true. So in his recent opinion, Posner gave Scalia a choice of agreeing with Posner or contradicting himself. He pointed out that Scalia, writing in dissent in Lawrence v. Texas (the subject was the state’s gay-focused antisodomy laws), warned that “today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions.” If Scalia votes against legal same-sex marriage when the time comes, then either he was blowing smoke when he said the Court had painted itself into a corner or he’s opposing gay marriage even though he can’t justify it legally. He goes along with Posner or looks silly.

Last year Scalia again feared the worst. The Supreme Court ruled that despite the Defense of Marriage Act, same-sex couples can’t be denied federal benefits. Again Scalia, in an angry yet lyrical dissent, voiced his dread: “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.”

“In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us,” Scalia wrote. “We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better.”

This is the language of Frank Merriwell or Chip Hilton—make it a clean fight, and be upright in victory and defeat. It’s really sweet.

But can anyone imagine the courts keeping their noses out of it so the civil rights struggle could be fought to an honest victory and a fair defeat (followed by handshakes all around)? The courts were a big part of jim crow until they weren’t—they don’t stand outside and above history as purely as Scalia might like to imagine. And the civil rights movement wasn’t about finding a winner and loser—it was about correcting an immense historical wrong. Once you wake up to the fact that what you’re dealing with ain’t no sports event, something dramatic happens to your sense of patience and equanimity.

Posner wrote that “homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world.” Supreme Court justices, disagree with that if you dare; and if you don’t, please explain why the honorable path for the court to take is to stand quietly by while that minority and the world that stigmatizes it quietly work out their differences as to when, where, and to what degree the discrimination should be ameliorated.

As Peter said Saturday, they’d been waiting 21 years. I wonder what kind of peace he and Bill would have ultimately enjoyed if they’d kept cooling their heels in Wisconsin waiting for the legislature to work something out that made everyone happy. I do know they were very much at peace when they married in Chicago—and no harm to anyone was reported. The people across the street from the church were still kicking soccer balls around in the grade school playground. Passersby still had the same bounce in their step. It was a fine, fine day. As for me, the wedding left me looking forward to the next one.

A postscript: Drawing his distinction between tangible and moral harm, John Stuart Mill offered an interesting illustration that Posner passed along. “The English people were fiercely critical of polygamy wherever it occurred,” wrote Posner. “As they were entitled to be.” And that included Utah. But as Utah was an ocean and a continent away, there was no possible way for the English to claim Utah’s loathsome polygamy caused them any tangible harm. “Mill didn’t think that polygamy, however offensive, was a proper political concern of England.”

But as opposed to political concern, there is also editorial concern. While Mill lived in the 19th century, did London’s dailies carry the occasional editorial advising the good people of Utah to clean up their act? I’d expect no less of Fleet Street. And if Mill wrote in pointing out the irrelevance of this indignation, did editors reply that irrelevance was beside the point? “It’s what we do, sir, and do damn well.”