Posner on Same-Sex Marriage: Then and Now

. . .  I disagree with contentions that the Constitution should be interpreted to require state recognition of homosexual marriage on the ground that it is a violation of equal protection of the laws to discriminate against homosexuals by denying them that right. Given civil unions, and contractual substitutes for marriage even short of civil unions, the discrimination involved in denying the right of homosexual marriage seems to me too slight (though I would not call it trivial) to warrant the courts in bucking strong public opinion . . . . — Richard Posner (2005)

At various points [in oral arguments in the same-sex cases], Judge Posner derided arguments from the Wisconsin and Indiana lawyers as “pathetic,” “ridiculous,” and “absurd.” — David Lat (2014)

This is the ninth installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, the fifth here, the sixth here, the seventh here, and the eighth one here.

Following the fourth installment in the Posner on Posner series of posts, someone commented on a point Judge Posner made in response to a question posed to him by Professor Kathryn Watts. That comment is set out below. Following it are excerpts from Judge Posner’s 1997 Michigan Law Review essay critiquing Professor William Eskridge’s The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment (1996). Accompanying them are some excerpts from Judge Posner’s opinion Baskin v. Bogan (7th Cir., Sept. 4, 2104, cert. denied and cert denied sub nom., 135 S. Ct. 316) in which he struck down two state laws banning same-sex marriage.

judgeposner_2010All of this is offered up duly mindful what Judge Posner said in a July of 2014 interview: “I’ve changed my views a lot over the years. I’m much less reactionary than I used to be. I was opposed to homosexual marriage in my book Sex and Reason (1992) [see here re those arguments], which was still the dark ages regarding public opinion of homosexuality. Public opinion changed radically in the years since. My views have changed about a lot of things.”

Of course, those comments from his 2014 interview with Joel Cohen were rendered before the Baskin case came before his court. Since the same-sex marriage cases are not  before the Supreme Court for review, I did not ask the Judge to comment on the matter.

That said, I begin with the online commentators remarks and will thereafter proceed to offer some excerpts:

  1. from Posner’s Sex and Reason (S&R)
  2. his Michigan Law Review essay (MLR)
  3. his Baskin opinion (BB), and
  4. some excerpts from the petition (CP) filed by the Attorney General of Indiana in Baskin since it references Judge Posner’s Michigan Law Review Essay and does so in support of its arguments for reversing the Seventh Circuit’s ruling.

Before offering any excerpts, however, I offer a historical sketch of the legal context in which Judge Posner found himself when he first wrote his book and law review essay and thereafter when he wrote his Baskin opinion.  

(Note: Some of the links below will open in Firefox and Chrome but not in Safari.)

Praise for Posner: On Judges Educating the Public

LGBT (12-3-14)Judge Posner, I am thinking you will probably read comments so I am taking this opportunity to reach out to you and sincerely thank you for your decision on the Wisconsin & Indiana cases on Gay Marriage. Your ruling was a Tour de Force (!) that got quoted & re-quoted all over the gay blogosphere. The lawyers and other Judges will remember other things you did, but the PUBLIC will remember your decision in the Gay Marriage cases. This will be the opinion that will be cited in the History books. And what was REALLY GREAT is how fast you turned it around. It was oral arguments, then BAM! . . .”

“How wrong you are when you say in your interview, ‘it’s unrealistic for judges to try to educate the general public. I don’t think the general public is interested in anything about judicial opinions except who won the case.’ Not in the Gay Marriage cases; the interest is not simply that we won, but WHY we won. Your words have been copied and pasted all over the gay blogosphere. I know that there is one gay website that gets 30 million hits a year, just that one site. Trust me your opinion was read by millions. It wasn’t simply who won, but WHY the gays won. It was validation to them, they read it and felt validated. You told them they were Equal, and that raised a lot of emotions. Tears were shed, a lot of them. People were commenting how they were reading your opinion and crying, it was very emotional for many, many people. Your opinion will most certainly go down in the history books on the history of the Gay Rights Movement. And I thank you deeply for it.”

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The Historical Backdrop

UnknownTurn the clock back to 1992, the time when then Judge Posner published Sex and Reason. That was before the Hawaii Supreme Court’s seminal ruling in Baehr v. Lewin (1993) in which it ruled that denying marriage licenses to same-sex couples violated the equality of rights provision of the state constitution unless the state could demonstrate a compelling interest for such discrimination. And the year before Posner published his Michigan Law Review essay (when Eskridge taught at Georgetown), President Bill Clinton signed the Defense of Marriage Act into law. Recall, that law permitted the states to refuse to recognize same-sex marriages and remained on the books until Section 3 of the Act was declared unconstitutional by a 5-4 margin in United States v. Windsor. In 1999 Vermont Supreme Court took the lead in ordering the state legislature to establish laws permitting same-sex marriages (Baker v. Vermont was the case). In 2000 the Vermont legislature enacted just such a law, making Vermont the first state in the Union to recognize same-sex marriages.

 As for guidance from the Supreme Court, recall that Romer v. Evans (a rather confusing opinion by a divided Court) was handed down in 1996 and Lawrence v. Texas in 2003.

Different Domains: Scholarly Opinions vs Judicial Opinions 

If pursued with characteristic Posnerian relentlessness, [several of his] premises [in Sex and Reason] could yield radically pro-gay policies. But Posner does not press his analysis and, instead, neglects his stated first principles. His treatment of gaylegal issues tends to collapse into well-meaning ad hoc-ness.

[R]epealing sodomy laws and outlawing overt discrimination against bisexuals, gay men, and lesbians are easy cases for a rationalist, libertarian analysis. But a tough-minded cost-benefit analysis [such as the one Posner employs] would not stop with the easiest cases. Recognizing the same constitutional right to privacy for same-sex intimacy as is accorded different-sex intimacy, ending the military’s exclusion of bisexuals, gay men, and lesbians, and requiring states to issue marriage licenses to same-sex couples are conclusions that are scarcely less compelling under Posner’s first principles. Yet Posner himself rejects or avoids these latter conclusions. And he does not even discuss other issues of profound importance to lesbian, gay, and bisexual communities.                        – William Eskridge (1992)

Professor William Eskridge

Professor William Eskridge

One does not have to defend Richard Posner’s early views on same-sex marriage to concede the obvious: it was a different legal world. Still, a new legal order was emerging as evidenced by two noteworthy pieces by Professor William Eskridge: First, his 1992 Yale Law Journal review essay of Sex and Reason, and second, his 1993 Virginia Law Review article, “A History of Same-Sex Marriage.” And then there was Professor Robin West’s critical 1993 Georgetown Law Journal review essay on Sex and Reason.

 Richard Posner, an intermediate appellate judge, was not then a part of that emerging order. As a jurist he yielded, so he asserted, to the dictates of judicial modesty. While such dictates understandably restricted the direction of his judicial opinions, they need not have dictated the direction of his scholarly opinions in which he often demonstrated a unique cerebral bravado and a willingness to be a maverick in forging creative arguments. Moreover, in his capacity as a public intellectual and legal scholar, Posner was quite outspoken in refuting the critics of his work. See, e.g., his “The Radical Feminist Critique of Sex and Reason” (1993) article. In all of this, it is important to note that Posner nonetheless: (1) favored decriminalizing homosexual sex; (2) endorsed contracts of cohabitation for same-sex couples; and (3) was fine with legislative enactments legalizing same-sex marriage.

Thus, prior to the oral arguments in Baskin v. Bogan and the opinion in that case, what Posner had written in Sex and Reason and in his Michigan Law Review essay gave a meaningful degree of legal legitimacy to the campaign to oppose same-sex marriage. As late as 2004, Posner’s arguments were reproduced in a collection of essays (edited by Andrew Sullivan and first published in 1997) on same sex-marriage. And then there is his 2005 statement quoted at the outset of this post. It took nearly 17 years after the Michigan Law Review essay was published before Judge Posner expressed any significantly different views, first in a 2014 interview and then in a 2014 judicial opinion. Why so long?

A pragmatic reformer is concerned with what works and therefore cannot ignore public opinion or political realities just because the things he wants to change are not rooted in nature but instead are “mere” constructs. — Richard Posner (1995)

Safe Harbor

By the time Baskin came down, Posner was in relatively safe legal harbor – 23 appellate courts (state and federal) and eight state legislatures had legitimized same-sex marriages. And three other states had done so by way of popular initiative. Plus, there was the Supreme Court’s 2013 ruling in United States v. Windsor.

Here, too, this is not to diminish the importance of Judge Posner’s exceptionally forceful questioning in the oral arguments in Baskin along with his cogent opinion in that case. The fact that he had aligned his reasoning with the cause of same-sex marriage is significant for any variety of reasons. The pertinent point here is simply to place them in historical and political context.

Professor Robin West

Professor Robin West

While he was a maverick leading the pack when it came to law and economics, Richard Posner was a follower (albeit a thoughtful and nuanced one) when it came to law and same-sex marriage. Or to put it more boldly, consider what Professor West wrote in 1993:

“It is not his view of homosexuality as genetically determined, however, that steers Posner away from a clear endorsement of same sex marriage. It is, rather, his near-absolute refusal to think imaginatively and empathically about the subjective lives of others.”

Whether that claim is entirely true, it might be true insofar as it points to a time when Posner (the public intellectual) chose (for pragmatic reasons) to align his thought more with the status quo than with what a new vision of the law of same-sex marital equality.

As for Eskridge’s final take on Sex and Reason, he spoke frankly: “We should be insistent that our concerns be addressed now, and not delayed by the standard legal process delays.” But for Judge Posner delay prevailed – in the case of same-sex marriage, that delay took twenty-two years after Sex and Reason was published.

Still, in time the septuagenarian jurist changed his views (again, first by way of a public interview, and then by way of a judicial opinion). But why the change?

  • Was it simply that his views (like those of many of us) had evolved?

(On this point, it bears noting that Professor Eskridge viewed the world of law and same-sex marriage from a different perch than the one on which Judge Posner sits, if only because the professor is a gay man writing from that vantage point, one of historical oppression. Such factors make a difference.)

  • Was it that the mood of the nation and that of the bench had changed dramatically since the time when Posner first wrote on the subject?
  • Was it that he did not want to find himself on the wrong side of history?
  • Was it all of the above? And/or something else altogether?
Professor David Skover

Professor David Skover

The Force of Cultural Sensitization

Although I knew in the 1950s that there were homosexuals, if asked I would have truthfully said that as far as I knew I had never met one, or expected ever to meet one, any more than I had ever met or expected to meet an Eskimo. Richard Posner (2012)

To be fair, there are mitigating factors that affect the way one thinks about life and law. For example, there is age, life experience, and cultural sensitization, all major forces of change and how one comes to see and judge his or her world. When seen through such lenses, earlier and harsher opinions may soften quite a bit and prompt one to rethink yesterday’s pronouncements. In this regard, just recall Justice Lewis Powell’s change of mind on the question of gay rights (see here).

Moreover, by June of 2012 Richard Posner’s views were evolving. Simply consider his words: “Another factor in increased tolerance is that as homosexuals began feeling less pressure to conceal their homosexuality, and so began to mingle openly with heterosexuals, the latter discovered that homosexuals are for the most part indistinguishable from heterosexuals, and this created sympathy for homosexuals’ desire to be treated equally with heterosexuals both generally and in regard to marriage.” Since his view of the law is not a static one, it seems natural that as societal norms began to change, so too would his understanding of the law, albeit aided by some variations in constitutional law as announced by the Supreme Court. That is a point to which he has long held. “I do not myself see,” he said back in 1997, “a sharp line in constitutional law between what is right and what is acceptable.”

So what about the wrong side of history argument? “I don’t believe,” observed Professor David Skover, “that it was only Posner’s unwillingness to be ‘on the wrong side of history’ that prompted him to change his opinion on same-sex marriage. For one thing, he doesn’t seem terribly concerned such matters given some of the other views he has espoused over the years. My guess, and it is only that, is that cultural sensitization probably had a lot to do with it. If so, a change of opinion for that reason should be lauded.”

The Posner Push  Credit: David Michael Miller

The Posner Push
Credit: David Michael Miller

Additionally, “consider the way Judge Posner ultimately weighed in on the subject of same-sex marriage,” Skover added. “Both in the oral arguments and in his opinion in Baskin, Judge Posner thoroughly trashed each and every stereotypical argument raised for upholding same-sex marriage bans under rationality review. No one heretofore had been near as forceful in calling out (and scorning) the makeshift arguments that Wisconsin and Indiana raised . . . arguments that continue to be honored by one federal (6th Circuit) and many state courts. And for that, I applaud him – ‘better late than never,’ as they say.”

Mindful of that last point, there is the likelihood that the arguments advanced in Baskin may take on added importance for two reasons:

  1. they were advanced by one of the nation’s preeminent jurists, and
  2. because they were advanced by that same someone who came to realize the error of his former ways.

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 Past Tense — Select Excerpted Passages 

MLR – On Tolerance: “Tolerance for homosexual relationships need not imply recognition of homosexual marriage . . . .”

S&R – On Public Hostility: “[T]he public hostility to homosexuals in this country is too widespread to make homosexual marriage a feasible proposal even if it is on balance cost-justified.”

MLR – On Official Approval: “The principal opposition to homosexual marriage comes from people who believe that for the state to recognize such marriage would be to place a stamp of official approval on homosexuality. Eskridge discusses this objection at length, but I do not think he refutes it. . . . [T]here is a difference between approving a form of union and approving particular individuals who are utilizing that form. Obviously the fact that a man wearing a dress can marry a woman wearing a suit, or a rapist his victim, does not entail that the state must allow a man to marry three women at once, or his cat, or his sports car.”

CP On Common Practice: “‘[H]omosexual marriage has nowhere been a common practice, even in societies in which homosexuality was common.’” (quoting MLR)

MLR – On History & Anthropology: “Eskridge’s examples of same-sex marriage, all of which are drawn from cultures that do not emphasize companionate marriage, have very limited relevance to the case for recognizing same-sex marriage in our society. It does not follow that same-sex marriage should be forbidden, only that history and anthropology do not furnish persuasive precedents for Eskridge’s position.”

MLR – On Adoption: “I do think (Eskridge is vague about this) that homosexual couples ought not be granted the identical rights of adoption as heterosexual couples without further study of the effects of such adoption not on the sexual orientation of the child, which I believe to be invariant to the adoptive parents’ orientation as to other environmental factors, but on the child’s welfare in the broadest sense.”

Note: In a 1993 Connecticut Law Review article Posner declared: In Sex and Reason “I discuss the pros and cons of homosexual marriage without reaching a conclusion, and I conclude that homosexuals should not be forbidden to have custody of children, that the best interests of the child may sometimes be served by such custody, and that the matter should be considered on a case-by-case basis rather than governed by blanket rules.”

MLR – On Judicial Restraint: “A decision by the Supreme Court holding that the Constitution entitles people to marry others of the same sex would be far more radical than any of the decisions cited by Eskridge. Its moorings in [1] text, [2] precedent, [3] public policy, and [4] public opinion would be too tenuous to rally even minimum public support. It would be an unprecedented example of judicial immodesty. That well-worn epithet ‘usurpative” would finally fit.”

CP – On Targeted Discrimination: “The Seventh Circuit’s refusal to examine its assumption of discrimination is all the more startling given that the opinion’s author has previously articulated the opposite view in published scholarship. Richard A. Posner, Should There Be Homosexual Marriage? And If So, Who Should Decide?, 95 Mich. L. Rev. 1578, 1582 (1997) (‘There is no legal barrier to homosexuals’ marrying persons of the opposite sex; in this respect there is already perfect formal equality between homosexuals and heterosexuals.’). In any event, a coherent understanding of traditional marriage is impossible if one begins by assuming what has yet to be proven, i.e., that it amounts to targeted discrimination.”

 BB – Suspect Discrimination: “[T]he governments of Indiana and Wisconsin have given us no reason to think they have a ‘reasonable basis’ for forbidding same-sex marriage. And more than a reasonable basis is required because this is a case in which the challenged discrimination is, in the formula from the Beach case, ‘along suspect lines.’ Discrimination by a state or the federal government against a minority, when based on an immutable characteristic of the members of that minority (most familiarly skin color and gender), and occurring against an historical background of discrimination against the persons who have that characteristic, makes the discriminatory law or policy constitutionally suspect.”

This next installment, the tenth, in the Posner on Posner series is titled “Posner on Case Workloads.” The post after that is a Q&A with the Judge’s biographer.  

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