Saturday, October 11, 2014
Judge Richard Posner’s opinion for the Seventh Circuit Court of Appeals in Baskin v. Bogan, which invalidated Indiana’s and Wisconsin’s definition of marriage, has been widely acclaimed as ending the argument. According to Posner, all state laws defining marriage as between a man and a woman are patently unconstitutional. In his words, “discrimination against same-sex couples is irrational,” “groundless,” and the arguments put forward to justify it are “totally implausible.” Those who celebrate Posner’s opinion proclaim that his reasoning is unanswerable, and that it provides a template for all courts that will hear marriage cases in the future.
In truth, the argument that Posner is said to have refuted remains compelling. His judgment is one long attempt to hide from that argument and to conceal it from his readers. In its refusal to engage the opposing argument, Posner’s opinion disgraces the federal judiciary.