- Rich Hein / Sun-Times Media
- Appellate Judge Richard Posner: daring the Supreme Court to disagree with his ruling that same-sex marriage bans are irrational and senseless.
Last Saturday I went to two weddings. It was a beautiful day and they made me so happy I was ready for two more.
Illinois is one of 19 states in which gay marriage is legal, but that’s only been true since June. In Wisconsin, meanwhile, a constitutional ban on gay marriage was ratified by voters in 2006. The world is a lot less approving of Peter and Bill’s relationship than the friends who attended their wedding are, and the scriptural passages read during it struck a double note, thanking those who supported them while asking the world to be kind.
Lawrence (2003) declared that what consenting adults do behind closed doors is no one’s business. Posner surmised that because of Lawrence, neither Wisconsin nor Indiana had based its prohibition of same-sex marriage on morality. And let me add—not on scripture, either. The wedding of Peter and Bill reminded me that the alliance of church and state in creating and defending the modern institution of marriage had bent law into an unholy mess—what business is it of government, anyway, to tell any church what its rites can and cannot be?
Presumably Feldman would have been more sympathetic to Wisconsin’s argument than Posner was. “Go slow,” advised Wisconsin in defense of its constitution. Posner noted that and, continuing to quote the state against itself, went on, “Maintaining the prohibition of same-sex marriage is the ‘prudent, cautious approach,’ and the state should therefore be allowed ‘to act deliberately and with prudence or, at the very least, to gather sufficient information—before transforming this cornerstone of civilization and society.’”
There is, for instance, Posner’s feud with Justice Antonin Scalia, his old University of Chicago colleague. It goes back at least to 2012, when Scalia published a book that accused Posner of “odious cynicism” toward legal principles Scalia cherished and Posner published an essay in the New Republic titled “The Incoherence of Antonin Scalia.” But let’s go back further, to 2008, when Posner, in the New Republic, trashed Scalia’s majority opinion in a historic Second Amendment case. “The range of historical references in the majority opinion is breathtaking,” Posner allowed, “but it is not evidence of disinterested historical inquiry. It is evidence of the ability of well-staffed courts to produce snow jobs.”
This is the language of Frank Merriwell or Chip Hilton—make it a clean fight, and be upright in victory and defeat. It’s really sweet.
