Posner on Same-Sex Marriage Is Music to My Ears

Matching bands! An an assault
on tradition!

Yesterday, the New York Times (and lots of other places) reported on the August 26 hearing at the United States Court of Appeals for the Seventh Circuit. This was a combined hearing in which the states of Indiana and Wisconsin (both in the Seventh) attempted to defend their bans on same-sex marriage before an appeals court of three judges.

Of the three judges, Ann Clair Williams, David Hamilton, and Richard Posner, most of the media attention has been on Judge Posner, never a shrinking violet. Posner, until fairly recently, maintained a blog, originally titled “The “Posner Blog,” until he started collaborating on the blog with Gary S. Becker. A quick check of the blog shows that with Becker’s death, Judge Posner decided to terminate the blog.

As Dale Carpenter points out at The Volokh Conspiracy, Indiana attempted to use the argument of “heterosexual irresponsibility” in order to support their ban on same-sex marriage. That argument, that marriage exists as something to push heterosexuals into should they accidentally conceive a child, was successful in convincing the New York Supreme Court that same-sex marriage wasn’t constitutionally obligatory under the New York Constitution. Professor Carpenter notes that “Posner made short work of the heterosexual irresponsibility argument.“

Posner took the view that the harms visited on gay people by bans on same-sex marriage must presumably be balanced by benefits to straight people.[1] And as Carpenter points out, he said, “You don’t have any sort of empirical or conjectural basis for your law. Funny.“ I know that there are may opponents of same-sex marriage who feel that their opposition should be sufficient reason to allow these laws (they talk a lot about the will of the people[2]), but you really do need more than that.
Best of all is that Slate has taken the best excerpts from the hearing. You can hear Judge Posner question the attorneys about their logic and facts. He sounds like a kind grandfather. A kind grandfather screwing you to the wall over your failings in logic and facts. The entire hearing is online, but if you don’t want to listen to the entire hearing, you owe it to yourself to listen to the excerpts over at Slate.

There’s an audible ”what?” from Judge Hamilton when Timothy Samuelson, the Wisconsin attorney general, claimed that the Virginia ban on interracial marriage was a deviation for the Commonwealth. It wasn’t Posner alone making things uncomfortable.
I want to end with a sample quotation from Judge Posner:

But, Loving. Tradition. Tradition. Hundreds of years, no interracial marriage. They would make the same arguments you would make. It’s tradition. We don’t want to change it, because we don’t know what would happen, right? Change a tradition? What if men stopped shaking hands, right? It would be the end of the nation, right? Right?

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1. Or more specifically between those in same-sex relationships and those in opposite-sex relationships.  ↩
   
2. Not, of course, in those situations where same-sex marriage has won at a vote. No way.  ↩