Richard Posner: Judicial Badass

The country is aflutter today as the Supreme Court refused certiorari to a slate of petitions regarding same-sex marriage; seven filings across five states appealing decisions by three circuit courts striking down same-sex marriage bans in those states were denied review without comment. In other words, gay marriage is a go in 11 more states for a total of 30 states and the District of Columbia. The petitions came from Indiana, Oklahoma, Utah, Virginia, and Wisconsin, and the states affected are shown below.

This is wonderful news in the march for equality, but I'd like to highlight one of the decisions in question, that authored by Judge Richard A. Posner of the Seventh Circuit. You can read the full decision here, but I'd like to point out a few tasty quotes:

The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction – that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended – is so full of holes that it cannot be taken seriously.

The state tells us that “non-procreating opposite-sex couples who marry model the optimal, socially expected behavior for other opposite-sex couples whose sexual intercourse may well produce children.” That’s a strange argument; fertile couples don’t learn about child-rearing from infertile couples. And why wouldn’t same-sex marriage send the same message that the state thinks marriage of infertile heterosexuals sends – that marriage is a desirable state?

Elderly first cousins are permitted to marry because they can’t produce children; homosexuals are forbidden to marry because they can’t produce children. The state’s argument that a marriage of first cousins who are past child-bearing age provides a “model [of] family life for younger, potentially procreative men and women” is impossible to take seriously.

At oral argument the state‘s lawyer was asked whether “Indiana’s law is about successfully raising children,” and since “you agree same-sex couples can successfully raise children, why shouldn’t the ban be lifted as to them?” The lawyer answered that “the assumption is that with opposite-sex couples there is very little thought given during the sexual act, sometimes, to whether babies may be a consequence.” In other words, Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents – model citizens really – so have no need for marriage. 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.

If marriage is better for children who are being brought up by their biological parents, it must be better for children who are being brought up by their adoptive parents. The state should want homosexual couples who adopt children – as, to repeat, they are permitted to do – to be married, if it is serious in arguing that the only governmental interest in marriage derives from the problem of accidental births. (We doubt that it is serious.)

One wouldn’t know, reading Wisconsin’s brief, that there is or ever has been discrimination against homosexuals anywhere in the United States.

But back to Wisconsin, which makes four arguments of its own against such marriage... fourth, same-sex marriage is analogous in its effects to no-fault divorce, which, the state argues, makes marriage fragile and unreliable – though of course Wisconsin has no-fault divorce, and it’s surprising that the state’s assistant attorney general, who argued the state’s appeal, would trash his own state’s law.

Does Wisconsin want to push homosexuals to marry persons of the opposite sex because opposite-sex marriage is “optimal”? Does it think that allowing same-sex marriage will cause heterosexuals to convert to homosexuality? Efforts to convert homosexuals to heterosexuality have been a bust; is the opposite conversion more feasible?

Wisconsin’s remaining argument is that the ban on same-sex marriage is the outcome of a democratic process – the enactment of a constitutional ban by popular vote. But homosexuals are only a small part of the state’s population – 2.8 percent, we said, grouping transgendered and bisexual persons with homosexuals. Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.

Posner isn't just an entertaining writer - he's a jurisprudential heavyweight, the most cited legal scholar of the 20th century, and shared a blog with Nobel Prize-winning economist Gary S. Becker. It may surprise you to learn that Posner was a Reagan appointee and, in 1997, wrote in the Michigan Law Review that he was unpersuaded by extant arguments for constitutional protection of same-sex marriage. But that position was rooted in public norms and precedence, not religion or righteousness, so 17 years later we find ourselves the beneficiaries of a bona fide judicial badass.

The Mouthwash Experiment

Have you ever wondered whether the type of mouthwash you use matters? Probably not, but I have. In fact, I once had a conversation with my therapist about spending over an hour at Target trying to decide which type of mouthwash to buy. While I was able to move past that specific incident of OCD, the opportunity to more thoroughly and scientifically answer the question has finally arrived.

My local Target had an unadvertised sale on Crest mouthwashes, making them cheaper than their Up & Up store brand, so I had no choice but to run an experiment. You may notice the absence of a whitening mouthwash - it was not on sale. But it will be included as the fourth variety for testing. As a group, they represent the spectrum of mouthwashes on the market, regardless of brand.

The blue and purple mouthwashes both feature sodium flouride, the standard active ingredient in toothpaste, and claim anticavity protection; the purple wash is alcohol-free. The green mouthwash features cetylpyridinium chloride and claims antigingivitis and antiplaque protection; the chemical itself is an antiseptic, so it should also offer anticavity protection. Curiously, the purple mouthwash ALSO includes cetylpyridinium chloride, though not as an active ingredient. In case you're concerned about chemical decomposition, all 3 bottles have expiration dates within a month of each other and more than 18 months from today. Whitening mouthwashes include sodium hypochlorite, otherwise known as bleach, but no active ingredients.

The testing process will be quite straightforward, using my current oral care regimen with the addition of consistency controls. My twice-a-day process includes:

1) Flossing with a Waterpik oral irrigator using lukewarm water for the duration of a full reservoir, approximately 55 seconds on the highest pressure setting. In addition to being much more consistent than string flossing, the ADHA (not ADA) claims that water flossing is a comparable, if not perfect substitute for traditional flossing.

2) Brushing for a full cycle with a Sonicare ProResults-headed toothbrush. I usually top off after the 2 minute timer expires, but the brush vibrates in 30 second intervals, so I'll be able to consistently go for 2 minutes 30 seconds. My longtime toothpaste of choice is Colgate Total Whitening gel, the only variety that includes triclosan, an antibacterial agent, in addition to the standard active ingredient of sodium flouride. I generally prefer gels to pastes for use with an electric toothbrush due to their higher viscosity.

3) Each of the pictured mouthwashes recommend 10 mL per use and feature spillover caps for accurate measurement. They also recommend rinsing for 60 seconds, which I will time with a wristwatch. One potential complication is that Crest 3D White mouthwash recommends using 15 mL and features a cap without a measurement structure, but I'll cross that bridge when I come to it.

An experiment like this wouldn't be complete without some hypotheses. I traditionally use a whitening mouthwash, but while it may brighten your smile, it doesn't seem to do much, if anything, for your oral health. The blue mouthwash only has sodium flouride, effectively making it "brushing-plus". The green mouthwash has cetylpyridinium chloride, which I'm skeptical is actually effective against plaque. The purple mouthwash has both ingredients, so it's my pre-test favorite, the Crest Pro-Health Complete Rinse.