Thursday, December 18, 2003

Boston Marriage: Richard Posner takes a close look at the Goodridge decision on gay marriage here in the form of a review of Evan Gerstmann's book Same-Sex Marriage and the Constitution. He's relentlessly logical about it, which I have to admire. But he takes some short cuts. I know I'm out of my league arguing with Judge Posner, but fools rush in, eh?

For one thing, he cites Justice Kennedy's decision in Lawrence v. Texas, calling his argument premised on the states overturning their own sodomy laws a "bandwagon" argument. This may or may not be as pejorative as it sounds, but he goes on to say:

I am dubious about interpreting the Constitution to authorize the Supreme Court to make discretionary moral judgments that offend dominant public opinion. [Emphasis mine.]
This sounds like a clarion call for bandwagon judgements. Perhaps there's less contradiction here than I'm seeing.

Immediately after, Posner notes:

Nothing in the Constitution or its history suggests a constitutional right to homosexual marriage. If there is such a right, it will have to be manufactured by the justices out of whole cloth.
This is just as easily said about marriage in general: Nothing specific about that right in the Constitution either. Sure, it's been put there by precedent (e.g., Turner v. Safly, in which, as Posner says, "the Court in 1987 ruled that a prison inmate could not be denied the right to marry, although the prison could forbid conjugal visits," not to mention Loving v. Virginia) -- but that was making a right out of whole cloth, too.

In the end, Posner argues for federalism: Let the states all try to solve this, and keep the Supremes out of it until the social implications shake out. Okay, I can respect the reasoning. (I can even sympathize with those who wish to keep hetero marriage a separate thing -- but those are the folks who should be forthcoming with some strong civil union laws.) But marriage has historically been an evolving institution, no matter what the conservatives say. It has pushed its way, slowly, through barriers of clan, class, nationality, and race -- marriage outside each of which once met with social disapproval. So why shouldn't sexuality be the next item on the list?

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