All Hail Richard Posner

Laws prohibiting same-sex marriage deserve to get “shredded” in court, and Judge Posner did a masterful job of doing the shredding. I suppose that he was helped by the fact that counsel arguing on behalf of the Indiana and Wisconsin laws also did a masterful job of allowing themselves to be shredded by the judge. Amazingly enough–or, perhaps not–the lawyers were not even prepared to lend anything resembling substantive support to their claims that same-sex marriage somehow “devalue” heterosexual marriage, or that children of a same-sex couple would not be better off if their parents could marry, or what “harmful consequences” might arise from permitting same-sex marriage to be legal. Professor Dale Carpenter, whose blog post I linked to, sums up the situation nicely with the following:

In many ways, the oral argument encapsulated the 25-year debate over same-sex marriage, in which  opponents have failed to come up with any harm that same-sex marriage might reasonably be expected to cause. Moreover, as in the larger debate over same-sex marriage, the lawyers for the states seemed not to have given any thought to the harm inflicted by bans on same-sex marriage because they had given little or no thought to the needs of families headed by same-sex couples.

Gay-marriage opponents have been backed into a vanishingly small empirical, logical, and legal corner in which they have no room to challenge the basic premises of gay equality, no ability to distinguish morally between homosexuality and heterosexuality and, in order to justify continuing to fence out gay couples, they must defend an understanding of the purpose of marriage that is so “artificially narrow” (Judge Hamilton’s phrase) and anemic it would be unrecognizable to the vast majority of Americans living in this or any other century.

Despite this complete oral argument rout of opponents of same-sex marriage, I imagine that more mental energy and brain cells will continue to be wasted arguing that legalizing same-sex marriage is somehow “bad for us,” even though opponents of same-sex marriage–including even erudite, educated and intelligent lawyers–can’t quite explain why allowing same-sex couples to marry would be bad in any way. Just imagine how much good could be done if we could take the mental energy being expended on arguing an indefensible position on the same-sex marriage debate, and use it to, say, grow the economy, innovate education policy, or come up with something resembling a credible foreign policy.

Nota bene: I do not practice before the Seventh Circuit Court of Appeals, and I do not anticipate applying to practice before the Seventh Circuit Court of Appeals, which means that I have no conflicts of interest in writing this blog post and that I have no interest whatsoever in writing favorably about judges on the Seventh Circuit Court of Appeals in order to obtain favorable rulings from them in the future.

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