Bilerico Report

Judge Posner’s gay marriage opinion is a witty, deeply moral masterpiece

Judge Richard Posner

Judge Richard Posner

Judge Richard Posner

Judge Richard Posner

Mark Joseph Stern at Slate, on U.S. Circuit Judge Richard Posner’s scathing rebuke of same-sex marriage bans in Indiana and Wisconsin:

In his opinion, Posner does not sound like a man aiming to have his words etched in the history books or praised by future generations. Rather, he sounds like a man who has listened to all the arguments against gay marriage, analyzed them cautiously and thoroughly, and found himself absolutely disgusted by their sophistry and rank bigotry.

The opinion is a masterpiece of wit and logic that doesn’t call attention to — indeed, doesn’t seem to care about — its own brilliance. Posner is not writing for Justice Anthony Kennedy, or for judges of the future, or even for gay people of the present. He is writing, very clearly, for himself.

Ironically, by writing an opinion so fixated on the facts at hand, Posner may have actually written the one gay marriage ruling that the Supreme Court takes to heart. Other, more legacy-minded judges have attempted to sketch out a revised framework for constitutional marriage equality, granting gay people heightened judicial scrutiny and declaring marriage a fundamental right.

But Posner isn’t interested in making new law: The statutes before him are so irrational, so senseless and unreasonable, that they’re noxious to the U.S. Constitution under almost any interpretation of the equal protection clause.


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