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.