Richard Posner, who sits on the U.S. Court of Appeals for the Seventh Circuit, recently opined for a unanimous three-judge panel when it tossed Wisconsin and Indiana’s same-sex “marriage” bans. I certainly can’t improve on Ed Whelan’s commentary about Posner’s opinion (here, here, here, and here). Instead, I’ll examine Posner’s earlier conversion to the cause of same-sex “marriage.”
Posner announced his conversion in a blog post dated May 13, 2012. Here are some excerpts in italics, followed by my commentary in bold:
Beginning in the 1960s and accelerating dramatically in the 1990s and 2000s, legal changes and changes in public attitudes resulted in the dismantling of most public and private discriminatory measures against homosexuals. Why the powerful antipathy toward homosexuality gave ground so rapidly and, it seemed, effortlessly, in the sense that resistance seemed to melt away rather than having to be overcome by militant action, is something of a puzzle. Greatly increased tolerance of nonmarital sex, and of cohabitation as a substitute for marriage, reduced the traditional abhorrence of homosexual sex, which was (and to a large extent still is, since only a handful of states recognize homosexual marriage) nonmarital; and with the decline of prudery, deviant sexual practices created less revulsion in the straight population.
This passage effectively equates the rise of open homosexuality with the decline of sexual morality.
Another factor in increased tolerance is that as homosexuals began feeling less pressure to conceal their homosexuality, and so began to mingle openly with heterosexuals, the latter discovered that homosexuals are for the most part indistinguishable from heterosexuals, and this created sympathy for homosexuals’ desire to be treated equally with heterosexuals both generally and in regard to marriage.
Homosexuals are decidedly different from heterosexuals in their sexuality. How does that essential difference “create sympathy for homosexuals’ desire to be treated equally … in regard to marriage”? Posner glosses over the fact of a long, sustained campaign by media and political elites to “celebrate” homosexuality and to recognize same-sex “marriage.” Morally anchorless people are easily swayed by such campaigns because they don’t understand what’s at stake. Same-sex marriage, to the unreflective, is just another “good thing” that government can do for an interest group. Like almost every government program since the establishment of the Interstate Commerce Commission in 1887, the benefits (for some) are visible; the costs are hidden, but real nonetheless.
Moreover, the older view of homosexuality (especially male homosexuality) as a choice … gradually gave way to realization on the part of most people that homosexual preference is innate, rather than chosen or the result of seduction or recruitment.
Perhaps. But causality is irrelevant to the issue of same-sex “marriage.”
If homosexuality is innate, it becomes difficult to see why it should be thought to require regulation. And for the additional reason that the homosexual population is very small. Kinsey’s estimate that 10 percent of the population is homosexual has long been discredited; it appears that no more than 2 to 4 percent is.
If psychopathy is innate, and if there are relatively few psychopaths, why not let psychopaths murder at will? I’m not equating homosexuality with psychopathy, just pointing out the fatuousness of Posner’s analysis.
This small population [of homosexuals] is on the whole law-abiding and productively employed, and having a below-normal fertility rate does not impose the same costs on the education and welfare systems as the heterosexual population does. It is thus not surprising that in response to the President’s announcement of his support for homosexual marriage, Republican leaders cautioned their followers not to be distracted by this issue from the problems of the U.S. economy. This was tacit acknowledgment that homosexual marriage, and homosexual rights in general, have no economic significance.
This is a side-show of Posner’s invention. Republican leaders certainly want to keep the focus on the state of the economy, but that has nothing to do with the public costs that might result from gay “marriage.”
It seems that the only remaining basis for opposition to homosexual marriage, or to legal equality between homosexuals and heterosexuals in general, is religious. [And blah, blah, blah.]
False. See related posts listed below.
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Related reading: John Finnis, “The Profound Injustice of Judge Posner on Marriage,” Public Discourse, October 9, 2014
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“Equal Protection” and Homosexual Marriage
Civil Society and Homosexual “Marriage”
Rationalism, Social Norms, and Same-Sex “Marriage”
In Defense of Marriage
The Myth That Same-Sex “Marriage” Causes No Harm
Abortion, “Gay Rights,” and Liberty