I barely skim appellate opinions striking down bans on gay marriage anymore. The rationales are almost always the same; if you’ve read one, you really have read them all, especially post-Windsor. But I made an exception for this one and not just because it’s a timely counterpoint to yesterday’s decision in Louisiana. The author for the majority is Richard Posner, Reagan appointee (but not a doctrinaire Reaganite), pioneer in the branch of legal scholarship known as “law and economics,” and a writer of freakishly prolific virtuosity. (Do an Amazon search and see how much turns up. And bear in mind, there are hundreds of judicial opinions and scores of law review articles on top of that.) Not only is he unusually influential, he’s also a guy who disdains overly formal legal writing. A stark example:
That’s Posner for you. Another striking difference: He frames his argument in today’s opinion from the beginning as one that’s fundamentally about the welfare of children, not the definition of “marriage” or what level of scrutiny is required under the Equal Protection Clause. If the state’s goal in banning gay marriage is ultimately about children, he says — specifically, encouraging men and women to form stable relationships for child-rearing purposes — how does denying gay adoptive parents the right to marry further that end? Don’t we want those families to be stable too? If the state can’t answer that simple question then all the rest of the legal claptrap involved in this is beside the point. A law that discriminates against a group has to show, at the very least, that it’s a rational means to the end it’s supposedly trying to attain.
Here’s another quintessentially Posnerian passage. Most courts will sidestep the question of whether homosexuality is a choice or an “immutable,” i.e. unchangeable, characteristic. Posner could sidestep it if he chose; a law that discriminates irrationally, as he says the Indiana and Wisconsin bans do, is unconstitutional no matter why the group suffering the discrimination is being targeted. Instead, he gets into the social science:
The citations are clickable in the PDF version of the opinion, incidentally, which is the first time I’ve seen that. He did that, I think, because he’s treating this opinion less as an opinion aimed at the legal intelligentsia that consumes such things in the course of its business than as an argument to the general public for why gay-marriage bans are unconstitutional. Go figure that a guy who’s used to writing for a wider audience, not just lawyers, would want to make his case as accessible as possible to laymen on an issue as closely watched as this one is. Here’s the link.