Monday, September 8, 2014

The 7th Circuit Decision on Gay Marriage

There has been much comment regarding the decision of the 7th Circuit Court of Appeals holding that laws adopted by the great states of Indiana and Wisconsin banning gay marriage are unconstitutional.  It's not clear to me that there should be, however.  I'm not quite that enthusiastic about it, though I have no problem with Judge Posner's decision.

It may be that it is receiving what I think is excessive praise merely because Judge Posner wrote the decision.  He is something of a star, even outside legal circles; perhaps this is why he is a star.  This is in part because he has commented on the philosophy of law, which used to be referred to as jurisprudence.  He is, I believe, a proponent of what has been called legal pragmatism.

Or it may be that the decision delights the more liberal of the media commentators because it was penned by a Court of Appeals judge nominated by Ronald Reagan, who a mere nine days before the issuance of the decision had treated the attorneys for the states in question rather roughly during oral argument.  Certainly Posner's ironic reference to a dissenting opinion by Justice Scalia delighted them, at the least.

The decision is well written, and as I said I don't object to it.  And there's no question that Judge Posner scored several hits during oral argument and in the decision itself.  I don't consider it a masterpiece, frankly, simply because the arguments of the states in support of their laws were from the purely legal standpoint clearly weak, and it was difficult to take them seriously, as Judge Posner noted several times in his opinion.  Even an accomplished writer like the Judge would find it hard to reach the heights of legal reasoning and eloquence when confronted with such arguments.

I think, however, the court's position that marriage imparts an element of respectability to a sexual relationship, and this is a benefit gay couples would be deprived of if not allowed to marry, is not very strong itself.  That may be the case in the future, but I doubt those who feel homosexuality is bad in itself would think it more respectable if those engaging in it were married, and to many others the idea of gay marriage would be so novel and unfamiliar that it will take them time to accord it the same respect as heterosexual marriage (if indeed heterosexual marriage is accorded such respect).

I think it's appropriate to address the decision and the arguments from a "purely legal standpoint" because that is the only standpoint from which they should be considered.  Judicial decisions should not be based on politics or religion, and should relate to morality only to the extent morals are evidently a part of the law itself.  Political and religious considerations may influence the adoption of laws, but once the laws are adopted they become part of the vast system of law and its administration and enforcement.  From the purely legal standpoint, the arguments made in support of the law had no substantive basis in law or in fact.  I wonder whether such arguments were the best that could be made for such bans.   If so, I think there's very little to argue about, and I feel sorry for those lawyers who had to make the argument nonetheless.

The simple fact is that tradition, morality and religious values don't factor strongly in the enforcement, administration and interpretation of the law.  They may play a role in the adoption of laws, but those laws once enacted are governed by the same systemic rules applicable to any other law.

Thus, political, religious and moral objections to gay marriage or arguments against it are, in a way, doomed to failure from the start as far as the law is concerned.  For good or ill, the law treats heterosexual marriage as essentially a partnership, not as a sacred institution, and is unable to discriminate against "gay partnerships" and favor "straight partnerships."

Religious institutions, however, are allowed to discriminate in many ways, and so may not allow gay marriage now or in the future.  Opponents of gay marriage must, I believe, be satisfied with that.

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