September 6, 2014 at 9:58 am EDT | by Chris Johnson
The evolution of Judge Posner on marriage equality
Richard Posner, gay news, Washington Blade

U.S. Circuit Judge Richard Posner has evolved on the issue of same-sex marriage. (Photo by chensiyuan; courtesy Wikimedia Commons)

U.S. Circuit Judge Richard Posner has earned the distinction of delivering one of the most sharply written decisions affirming a constitutional right to same-sex marriage, but a look at the jurist’s three-decade career on the federal bench reveals it took time for him to reach those views.

Already renowned as a a legal scholar, the 75-year-old Reagan-appointed judge has become an overnight sensation for advocating marriage rights for gay couples. He won praise for his aggressive questioning during oral arguments of state attorneys defending bans on same-sex marriage before the U.S. Seventh Circuit Court of Appeals, and his ruling on Thursday striking down same-sex marriage bans in Wisconsin and Indiana.

In a 40-page decision loaded with as much legal analysis as social science, Posner, joined by judges Anne Claire Williams and David Hamilton, conclude that these lawsuits are not only about gay couples seeking marriage equality, but also “about the welfare of American children.”

“Children, being natural conformists, tend to be upset upon discovering that they’re not in step with their peers,” Posner writes. “If a child’s same-sex parents are married, however, the parents can tell the child truthfully that an adult is permitted to marry a person of the opposite sex, or if the adult prefers as some do a person of his or her own sex, but that either way the parents are married and therefore the child can feel secure in being the child of a married couple.”

Often in a colloquial tone, Posner shreds the arguments offered in defense of the marriage bans. In response to an argument that marriage is intended to facilitate “responsible” procreation, for example, Posner concludes that amounts to saying only straight couples need marriage because they “tend to be sexually irresponsible, producing unwanted children by the carload.”

“Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry,” Posner continues. “Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”

A look at the congressional record reveals Posner breezed through his confirmation process. The Senate approved him in a group of other judicial nominees on Nov. 24, 1981 by unanimous consent.

Prior to his confirmation, Posner served stints in the 1960s with the Federal Trade Commission and the U.S. Solicitor General’s office before becoming a law professor in 1969 at the University of Chicago. As a scholar, Posner earned a reputation for controversy.

During his confirmation hearing before the Senate Judiciary Committee on Nov. 20 1981, the late Sen. Charles Percy, an Illinois Republican, backed his nomination with a caveat.

“He has written so many articles on many subjects that he could be hanged for almost any of his views,” Percy said. “They are controversial, without any question. But even those who might oppose those views look upon them as creative, imaginative, bold and scholarly in every respective.”

During his tenure on the Seventh Circuit, Posner has developed a reputation as an independent and often conservative thinker. For example, he has expressed skepticism about anti-trust laws but also has been supportive of abortion rights and decriminalization of drugs. In 2012, he said in an interview with National Public Radio that he’s become less of a conservative “since the Republican Party started becoming goofy.”

Still, like many Americans, Posner hasn’t always held the view that bans on same-sex marriage violate the Equal Protection Clause of the U.S. Constitution.

In a 1997 book review published in the Michigan Law Review, for example, Posner was skeptical that the Constitution guaranteed same-sex marriage. The subject was “The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment” by Yale Law Professor William N. Eskridge, Jr. The book, which came out at a time when Hawaii was on track through the judiciary to legalize same-sex marriage, espouses the idea that courts must grant same-sex couples the right to marry as quickly as possible.

Although Posner acknowledges his belief that, without further study, same-sex couples should be allowed to adopt children just the same as different-sex couples, he disputes the notion that the right to same-sex marriage is guaranteed under the U.S. Constitution.

Citing public opinion that was overwhelmingly against same-sex marriage at that time, Posner says for the time being the marriage issue should be resolved through the democratic process in the state legislatures.

“It thus is to me a significant weakness of Eskridge’s book that it does not examine the pragmatic objections to constitutionalizing the question of same-sex marriage,” Posner concludes. “He wants the courts in the name of the Constitution to require every state and the federal government, at a stroke, tomorrow if possible, to confer all fifteen perquisites of the married state on parties to homosexual marriage, including full rights of adoption, plus the symbolic crown — the name ‘marriage.’ The country is not ready for Eskridge’s proposal, and this must give pause to any impulse within an unelected judiciary to impose it on the country in the name of the Constitution.”

In 1998 piece titled, “Against Constitutional Theory,” published in New York Law Review, Posner also takes issue with the 1996 landmark Supreme Court decision of Romer v. Evans, which found Colorado’s Amendment 2 — a law that prohibited localities from establishing LGBT non-discrimination ordinances — was unconstitutional.

Looking at the Romer decision — as well as United States v. Virginia, a 1996 ruling in which the Supreme Court overturned the Virginia Military Institute’s male-only admission policy — Posner doesn’t argue the cases were wrongly decided, but says the two decisions lack adequate empirical data to back the determination in the rulings.

The Romer decision, Posner says, determines that Colorado passed Amendment 2 out of hostility toward gay people, but fails to examine whether Amendment 2 was a rational expression of that hostility.

“No allusion to the scientific and social scientific evidence bearing on the phenomenon of homosexuality was made in the Romer opinion, however, so that as it stands the Court seems prepared to forbid discrimination against homosexuals even if the Colorado ban on protective legislation for homosexuals is entirely rational discrimination — the equivalent of ‘discriminating’ against airline pilots who have the misfortune to be old or infirm and as a result are grounded against their will,” Posner writes.

Posner says his personal belief is that evidence shows sexual orientation is “genetic or at least congenital, and not acquired,” but notes most Americans dislike homosexuality, don’t want their children to become gay and worry about AIDS spreading to the straight population.

Hostility directed at gay people, Posner writes, is different from other kinds of hostility, like anti-Semitism, so must be analyzed on its own terms, and a law intended to “prevent peaceable private discrimination” against gay people, such as Amendment 2, “falls far short of savagery.”

One decision that Posner issued from the bench that touches on gay rights came in 2001 as the result of a lawsuit filed by Milagros Irizarry, a female employee of the Chicago public school system, who sued the city because it excluded her and her female partner from the domestic partner registry, which was intended for same-sex couples. Posner affirms a district court decision against the couple on the basis that they haven’t articulated a reason why they haven’t married.

Referencing a brief apparently filed in the case by Lambda Legal on behalf of the straight couple, Posner somewhat derisively refers to the LGBT legal group’s efforts as an attempt to ensure “marriage will lose some of its luster.”

Decades later, a shift is apparent in the way Posner perceives gay people and granting them access to the institution of marriage. It’s distinctly articulated in a posting two years ago on a blog he co-wrote with the late economist Gary Becker.

Three days after President Obama’s announcement that he had come to support marriage equality after 18 months of evolving on the issue, Posner admits his own perception of gay people has changed over the course of his lifetime.

“Although I knew in the 1950s that there were homosexuals, if asked I would have truthfully said that as far as I knew I had never met one, or expected ever to meet one, any more than I had ever met or expected to meet an Eskimo,” Posner writes.

Observing the history of discrimination faced by gay people and their efforts to conceal their sexual orientation, Posner observes that it seems to be abating amid “legal changes and changes in public attitudes.” The judge writes, “there seems very little doubt that homosexuality is innate” and, therefore, is in no need of regulation.

“It seems that the only remaining basis for opposition to homosexual marriage, or to legal equality between homosexuals and heterosexuals in general, is religious,” Posner concludes. “If as it appears homosexuality is innate, and therefore natural (and indeed there is homosexuality among animals), and if homosexuals are not an antisocial segment of the population, why should they be thought to be offending against God’s will?…I do not know the answer. But whatever the answer, the United States is not a theocracy and should hesitate to enact laws that serve religious rather than pragmatic secular aims, such as material welfare and national security.”

It was when Posner’s name was drawn as one of three judges in the Seventh Circuit who would decide the cases challenging marriage bans in Wisconsin and Indiana that the full force of this view became apparent.

The septuagenarian judge’s aggressive questioning of state attorneys from Wisconsin and Indiana — which sometimes left them unable to answer — was widely disseminated online.

Some highlights: When Assistant Attorney General Timothy Samuelson couldn’t immediately answer why allowing same-sex couples to wed might have a negative impact and pledged to offer a brief later on the issue, Posner replied, “How can you brief it if you don’t know anything about it?” At another point when the attorney said any negative impact on same-sex marriage is unknown, Posner quipped, “You don’t have any sort of empirical or even conjectural basis for your law. Funny.”

When Indiana Solicitor General Thomas Fisher responded to Posner’s question about why his state preferred heterosexual adoption over homosexual adoption for children, the judge apparently answered for him, saying, “You want them to be worse off.”

What makes Posner’s aggressive questioning of state attorneys general during oral arguments particularly striking is he was the sole judge on the panel appointed by a Republican president. The two judges appointed by Democrats — Ann Claire Williams, a Clinton appointee; and David Hamilton, an Obama appointee — hinted they would rule against the same-sex marriage bans, but were more even-handed in their approach with attorneys.

Adam Romero, federal legal director for the Williams Institute at the University of California, Los Angeles, said Posner’s evolution on marriage reflects his empirical approach to constitutional law.

“That approach often leads Posner to strive to interrogate what we know (and do not know) empirically about the costs and benefits to individuals and society of discriminatory laws or constitutional rights,” Romero said.

Sometimes that philosophy has led Posner to express skepticism of judicial rulings, Romero said, including landmark civil rights decisions that he sees as lacking sufficient empirical support.

“But for this same reason, Judge Posner’s views on what the constitution has to say about same-sex marriage  evolved as the empirical support for same-sex marriage, and LGBT rights more broadly, has only continued to build — as documented in the Seventh Circuit’s lacerating decision against Wisconsin’s and Indiana’s marriage bans,” Romero said. “The American public is on a similar trajectory but we have a long way to go, rendering continued academic research on LGBT people all the more important.”

Similar to his own evolution, Posner predicts in his decision against marriage bans in Wisconsin and Indiana that support for same-sex marriage will only continue to grow among the public after it sees empirical facts of its positive value.

“Not that allowing same-sex marriage will change in the short run the negative views that many Americans hold of same-sex marriage,” Posner writes. “But it will enhance the status of these marriages in the eyes of other Americans, and in the long run it may convert some of the opponents of such marriage by demonstrating that homosexual married couples are in essential respects, notably in the care of their adopted children, like other married couples.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

  • “One decision that Posner issued from the bench that touches on gay rights came in 2001 as the result of a lawsuit filed by Milagros Irizarry, a female employee of the Chicago public school system, who sued the city because it excluded her and her female partner from the domestic partner registry, which was intended for same-sex couples. Posner affirms a district court decision against the couple on the basis that they haven’t articulated a reason why they haven’t married.”

    This paragraph makes no sense. It makes no sense because Irizarry’s long-term domestic partner was male – not female or same-sex. Marriage was available to them as a vehicle to obtain the benefits under discussion.

  • Maybe one lesson of Judge Posner’s shifting views from 1997 to his 2012 article and 2014 oral argument and decision is that courts in practice often tend to follow the election returns — or the public opinion polls. Pragmatically, there might have been a perception in 1997 that a ruling like that of SCOTUS in United States v. Windsor, let alone a 50-State marriage equality ruling, might have resulting in passage and ratification of the Federal Marriage Amendment proposed during that epoch.

    One possible parallel: the not-so-illustrious episode where SCOTUS, after striking down school segregation and the “separate but equal” doctrine in Brown v. Board of Education and related cases, declined to hear “the case that dare not speak it’s Naim,” i.e. Naim v. Naim on miscegenation, an issue only taken up a decade or so later in Loving v. Virginia, when the public was finally deemed “ready” to have the right of marriage extended to interracial couples.

  • This was a surprising ‘page-swiper’. I thought I could quickly skim it. But it was too fascinating– and pretty deep in the legal eagle woods. I found myself re-reading a number of portions.
    Important bits and pieces of LGBT history are happening (or evolving) — it seems like every week, now. The Blade’s in-depth chronicling of this unfolding history is important too.
    Terrific reporting, as usual.

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