Is There Any Rational Case for Banning Gay Marriage?

In an exhilarating takedown of Indiana and Wisconsin's prohibitions, Judge Richard Posner rules there isn't. But will he persuade anyone?
Mario Anzuoni/Reuters

Competing with William Faulkner, Flannery O’Connor once wrote, is an inevitably losing proposition: “Nobody wants his mule and wagon stalled on the same track the Dixie Limited is roaring down.”

Federal District Judge Martin Feldman may feel like that luckless muleskinner today. His decision affirming a state ban on same-sex marriage appeared Wednesday. On Thursday, the Dixie Limited, in the person of Judge Richard Posner of the Seventh Circuit Court of Appeals, ran over him going the other way.

In an opinion for a unanimous three-judge panel, Posner upheld a district-court ruling that struck down same-sex marriage bans in Indiana and Wisconsin. The opinion is a Posnerian tour de force: clear, clever, thorough, witty, and—well—odd. It replies to most of the arguments Feldman accepted, including the most important one—that the courts should defer to the political process in matters of social policy.

At this point, we know all the arguments against marriage equality: Procreation. Tradition. Morality. Caution about social change. Democratic process. Feldman’s opinion had a kind of listless, get-off-my-lawn tone. You kids and your same-sex marriage, can just count me out, he seems to be saying. Procreation, slippery slope, democratic process, can I go now?

Posner’s tone is not fatigue but Five-Hour Energy. He does not rebut arguments against same-sex marriage, but rather (to paraphrase an old Southern threat) beats them to a pulp, puts the pulp into a sack, and then beats on the sack.

Same-sex marriage bans, he writes, violate the 14th Amendment’s prohibition on “deny[ing] ... the equal protection of the laws.” He chides the state defendants for ignoring the long history of discrimination against LGBT people:

One wouldn’t know, reading Wisconsin’s brief, that there is or ever has been discrimination against homosexuals anywhere in the United States. The state either is oblivious to, or thinks irrelevant, that until quite recently homosexuality was anathematized by the vast majority of heterosexuals (which means, the vast majority of the American people), including by most Americans who were otherwise quite liberal. Homosexuals had, as homosexuals, no rights; homosexual sex was criminal (though rarely prosecuted); homosexuals were formally banned from the armed forces and many other types of government work (though again enforcement was sporadic); and there were no laws prohibiting employment discrimination against homosexuals.

Sexual orientation, he writes, has all the earmarks of what constitutional lawyers call a “suspect classification,” meaning a trait like race, religion, or sex that automatically triggers judicial suspicion when employed in law. Such classifications, he says, are based on “immutable or at least tenacious characteristic of the people discriminated against (biological, such as skin color, or a deep psychological commitment, as religious belief often is, both types being distinct from characteristics that are easy for a person to change, such as the length of his or her fingernails).”

But Posner does not push ahead of the Supreme Court by holding that restrictions on LGBT people should receive “heightened scrutiny” like those based on race, religion, or sex. Instead, he focuses on the reasons the two states gave for discriminating against LGBT people in marriage, which strike him as not just irrational but nonexistent. “The governments of Indiana and Wisconsin have given us no reason to think they have a ‘reasonable basis’ for forbidding same-sex marriage,” he writes.

Posner finds the states’ justifications so irrational that he almost becomes unhinged himself. Is the ban in place to encourage responsible procreation by heterosexuals? “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."

Presented by

Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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