Judge Richard Posner Ruled Wisconsin & Indiana’s Gay Marriage Bans Unconstitutional With These Kickass Quotes
Finally joining the 21st century's definition of equality are Indiana and Wisconsin, whose same-sex marriage bans were ruled unconstitutional on Thursday. In a resounding victory for proponents of marriage equality, and you know, general progressivism, a federal appeals court in Chicago made their decision just nine days after Indiana and Wisconsin lawyers made feeble attempts at explaining why gay couples should not be granted the same legal rights as their heterosexual counterparts. Calling the reasoning behind a gay marriage ban "totally implausible," the three-person court unanimously ruled to uphold a lower court's earlier verdict on the matter.
This ruling confirms the logic justices doled out in state courts a few months ago, and marks the third time a federal appellate court has voted against a gay marriage ban. While judges in Indiana and Wisconsin initially determined that marriage is a fundamental right, the Chicago-based appellate court went a different route, and instead invoked the Constitution's equal protection clause.
Wrote Justice Richard Posner,
When there is no justification for government’s treating a traditionally discriminated-against group significantly worse than the dominant group in society, doing so denies equal protection of the laws.
With Indiana and Wisconsin now joining the ranks of states in which gay marriage bans are unconstitutional, the total count is now up to 21 — nearly half the union. While appeals are already underway in these two states to overturn the ruling, it is likely that the case will make its way back to the highest court in the land, where Notorious RBG and company will once again tackle the issue of same-sex marriage.
As phenomenal as the decision itself was, even better may just be the way in which it was handed down — Judge Posner (who is, mind you, a conservative and Republican appointee), wrote what may be one of the sassiest and most hilariously on-point decisions about gay marriage that I've seen in quite a while. While you could make your way through the best 40-page document in the history of the judicial branch, I thought I'd pick out the brightest and best gems for you.
1. On Tradition
Chief among the two states' defenses of their ban was the idea that the tradition of marriage necessitated a man and a woman. Of course, dueling was also once a traditional method of settling arguments, but no one seems to be citing that as an to justify gun battles. Wrote Posner,
[There are] bad traditions that are historical realities such as cannibalism, foot-binding, and suttee, and traditions that from a public-policy standpoint are neither good nor bad — such as trick-or-treating on Halloween. Tradition per se therefore cannot be a lawful ground for discrimination-regardless of the age of the tradition.
I, for one, could definitely get behind the tradition of judicial sass.
2. On Procreation
Calling out traditionalists who often claim that children are better off in nuclear families rather than broken homes, the court noted that banning gay couples from getting married seemed counterintuitive and counterproductive for raising "healthy" children. Said Posner,
If marriage is better for children who are being brought up by their biological parents, it must be better for children who are being brought up by their adoptive parents...The state should want homosexual couples who adopt children…to be married.
It is estimated that in the United States, some 200,000 children are raised by gay parents, about 6,000 of which reside in Indiana and Wisconsin.
3. On "do it for the children"
Appealing to pathos, one of Posner's best lines sought to reach the root of the issue.
Formally these cases are about discrimination against the small homosexual minority in the United States. But at a deeper level...they are about the welfare of American children.
4. On Gay Couples vs. Straight Couples
Another one of the defenses' key arguments was the idea that the inability of gay couples to procreate made marriage unnecessary, because as we all know, the only reason we choose to wed our significant other is to inseminate or be inseminated. The court disagreed entirely with this rationale, and said that this justification was so "full of holes that it cannot be taken seriously." Enter Posner,
Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry but that gay couples, unable as they are to produce children wanted or unwanted, are model parents – model citizens really – so have no need for marriage.
5. On illogical reasoning
Judge Posner really, really didn't like the argument of children against gay marriage.
Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.
6. On the hypocrisy of Indiana
In Indiana, marriage between two first cousins is illegal. However, if a couple of first cousins are proven infertile, then all bets are off, and marriage is a go.
Why are they (first cousins) allowed to reap the benefits accorded marriages of fertile couples, and homosexuals are not? [Indiana has] thus invented an insidious form of discrimination: favoring first cousins, provided they are not of the same sex, over homosexuals.
7. On marriage
Posner's impassioned opinion made exceedingly clear both his stance on gay marriage, and also his indignation at the injustices suffered by the homosexual community of the United States. The continued refusal of some states to allow gay couples to marry, Posner said, has wrought "considerable" damage, and is a "source of continuing pain to the homosexual community." Moreover, he wrote,
Marriage confers respectability on a sexual relationship. To exclude a couple from marriage is thus to deny it a coveted status.
8. On the purpose of constitutional law
Judicial action has conferred equality to a number of groups, from civil rights, to women's suffrage, and now, slowly but surely, to the gay community.
Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.
9. The best one yet
I saved the best for last, all for you.
If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a harmless anachronism; it is a violation of the equal protection clause.
Go get 'em, Judge Posner.
Images: Getty Images (10)