Posner On the Obvious Unconstitutionality of Same-Sex Marriage Bans

Charles has the juiciest excerpt from Richard Posner’s tour de force opinion holding the same-sex marriage bans in jurisdictions covered by 7CA unconstitutional. But it’s worth reading in its entirety. Here’s the bottom line:

Our pair of cases is rich in detail but ultimately straight-forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage  because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.

And given that sexual orientation isn’t really a rational basis category anymore but is subject to whatever it is you want to call what Anthony Kennedy is doing, the case is even easier.

I also really liked his point about how Indiana explicitly permits first cousins over the age of 65 to marry, giving away the show:

Indiana has thus invented an insidious form of discrimination: favoring first cousins, provided they are not of the same sex, over homosexuals. Elderly first cousins are permit-ted to marry because they can’t produce children; homosexuals are forbidden to marry because they can’t produce children. The state’s argument that a marriage of first cousins who are past child-bearing age provides a “model [of] family life for younger, potentially procreative men and women” is impossible to take seriously.

But, really, the whole thing is devastating. Reading it, I was reminded of poor Maggie Gallagher trying to defend same-sex marriage bans at Volokh nearly a decade ago. It’s not that she was leaving good arguments unsaid; it’s that there just aren’t any good arguments on behalf of her position. It’s just an empty tautology, and attempts to come up with a more rational-sounding defense instantly collapse on themselves.