Here’s a mostly-approving response to the SSM decision by Judge Richard A. Posner, a libertarian, economics-oriented Reagan appointee to the U.S. Court of Appeals in Chicago (spoilered because it’s a little long).
THE CHIEF JUSTICE’S DISSENT IS HEARTLESS
By Judge Richard A. Posner
It was no surprise that the Supreme Court held Friday that there is a constitutional right to same-sex marriage. It is very difficult to distinguish the case from Loving v. Virginia, which in 1967 invalidated state laws forbidding miscegenation. There was, as an economist would say, a “demand” (though rather limited) for biracial marriage, and it was difficult, to say the least, to comprehend why such marriages should be prohibited. In fact the only “ground” for the prohibition was bigotry. The same is true with respect to same-sex marriage. No more than biracial marriage does gay marriage harm people who don’t have or want to have such a marriage. The prohibition of same-sex marriage harms a nontrivial number of American citizens because other Americans disapprove of it though unaffected by it.
John Stuart Mill in On Liberty drew an important distinction between what he called “self-regarding acts” and “other-regarding acts.” The former involves doing things to yourself that don’t harm other people, though they may be self-destructive. The latter involves doing things that do harm other people. He thought that government had no business with the former (and hence—his example—the English had no business concerning themselves with polygamy in Utah, though they hated it). Unless it can be shown that same-sex marriage harms people who are not gay (or who are gay but don’t want to marry), there is no compelling reason for state intervention, and specifically for banning same-sex marriage. The dissenters in Obergefell missed this rather obvious point.
I go further than Mill. I say that gratuitous interference in other people’s lives is bigotry. The fact that it is often religiously motivated does not make it less so. The United States is not a theocracy, and religious disapproval of harmless practices is not a proper basis for prohibiting such practices, especially if the practices are highly valued by their practitioners. Gay couples and the children (mostly straight) that they adopt (or that one of them may have given birth to and the other adopts) derive substantial benefits, both economic and psychological, from marriage. Efforts to deny them those benefits by forbidding same-sex marriage confer no offsetting social benefits—in fact no offsetting benefits at all beyond gratifying feelings of hostility toward gays and lesbians, feelings that feed such assertions as that heterosexual marriage is “degraded” by allowing same-sex couples to “annex” the word marriage to their cohabitation.
Justice Anthony Kennedy’s majority opinion invalidating state laws against same-sex marriage is convincing, though I would have preferred to see it longer on facts and shorter on sonorous quotations from previous Supreme Court decisions. The four dissents strike me as very weak, though I’ll discuss just two of them, beginning with the chief justice’s. On the first page of his opinion, we read that “marriage ‘has existed for millennia and across civilizations,’ ” and “for all those millennia, across all those civilizations, ‘marriage’ referred to only one relationship: the union of a man and a woman.” That’s nonsense; polygamy—the union of one man with more than one woman (sometimes with hundreds of women)—has long been common in many civilizations (let’s not forget Utah) and remains so in much of the vast Muslim world. But later in his opinion the chief justice remembers polygamy and suggests that if gay marriage is allowed, so must be polygamy. He ignores the fact that polygamy imposes real costs, by reducing the number of marriageable women. Suppose a society contains 100 men and 100 women, but the five wealthiest men have a total of 50 wives. That leaves 95 men to compete for only 50 marriageable women.
The chief justice criticizes the majority for “order[ing] the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?” We’re pretty sure we’re not any of the above. And most of us are not convinced that what’s good enough for the Bushmen, the Carthaginians, and the Aztecs should be good enough for us. Ah, the millennia! Ah, the wisdom of ages! How arrogant it would be to think we knew more than the Aztecs—we who don’t even know how to cut a person’s heart out of his chest while’s he still alive, a maneuver they were experts at.
The only effort the chief justice makes to distinguish the Loving case from the same-sex marriage case is that it did not alter “the core structure of marriage as the union between a man and a woman.” But the states that forbade miscegenation considered the prohibition an important part of the core structure of marriage. For they thought part of the core was that marriage be uniracial—that whites must just marry whites and blacks just marry blacks—just as Orthodox Jews believe that the core structure of (their) marriage culture is both spouses subscribe to Orthodox Judaism.
The chief justice worries that the majority opinion has mounted “assaults on the character of fairminded people” who oppose same-sex marriage, by remarking that they impose “ ‘[d]ignitary wounds’ upon their gay and lesbian neighbors.” But of course they do, even if innocently, because a married couple doesn’t appreciate being told that their marriage, though legal, is sinful. That isn’t to say that people are forbidden to oppose same-sex marriage; it is merely to remark on one of the costs of that opposition and one of the reasons to doubt that it should be permitted to express itself in a law forbidding such marriage.
Related to the preceding point, the chief justice’s dissent is heartless. There is of course a long history of persecution of gay people, a history punctuated by such names as Oscar Wilde, Pyotr Ilyich Tchaikovsky, and Alan Turing. Until quite recently, many American gays and lesbians took great pains to conceal their homosexuality in order to avoid discrimination. They value marriage just as straight people do. They want their adopted children to have the psychological and financial advantages of legitimacy. They are hurt by the discrimination that the dissenting justices condone. Prohibiting gay marriage is discrimination.
Justice Samuel Alito’s dissent, to which I turn briefly, ascribes to the states that want to forbid same-sex marriage the desire “to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children. They thus argue that there are reasonable secular grounds for restricting marriage to opposite-sex couples.” That can’t be right. States that forbid same-sex marriage do not do so in an effort to encourage gays and lesbians to marry people of the opposite sex and thereby procreate. The nation is not suffering from a shortage of children. Sterile people are not forbidden to marry, though by definition they do not procreate. There is no greater reason to forbid gay marriage, which is actually good for children by making the children adopted by gay couples (and there are a great many such children), better off emotionally and fiscally.
Alito says that states that want to prohibit same-sex marriage “worry that by officially abandoning the older understanding, they may contribute to marriage’s further decay.” This doesn’t make sense. Why would straight people marry less and procreate less just because gay people also marry and raise adopted children, who, but for adoption, would languish in foster homes?
He adds: “Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.” But why should the people who control a state have the right to deny the right of some of their fellow citizens to marry, without a reason? Alito has no answer.
He deplores the fact that “a bare majority of Justices can invent a new right and impose that right on the rest of the country.” Would he be content had the vote been 6–3 rather than 5–4? I doubt it. And isn’t the history of constitutional law the history of Supreme Court justices, often by a narrow vote, inventing new rights and imposing them on the rest of the country?
*Richard A. Posner is a judge of the U.S. Court of Appeals for the Seventh Circuit, and a senior lecturer at the University of Chicago Law School.
For more on the judge: Richard Posner - Wikipedia*
