Sometimes the gods of happy coincidence smile down on us as law teachers. This last week I have been working with my Legal Theory students on rights and freedom, and on Thursday Judge Richard Posner handed down the (unanimous) decision of the US Court of Appeals, Seventh Circuit in Baskin v Bogan, striking down legislative bans on same-sex marriage in the states of Indiana and Wisconsin.
In a closely argued 40-page opinion Judge Posner finds that the states’ bans breach the Equal Protection Clause of the US Constitution. The case does not address the argument that gay marriage should be permitted as a fundamental right. The decision thus sits within a framework of classical Equal Protection ‘suspect class’ legal analysis. It finds that the same-sex-marriage bans discriminate on the basis of sexual orientation, and that such classification, being based on an immutable characteristic of the group discriminated against, proceeds along ‘suspect lines’. Consequently the obligation falls on the states seeking to uphold the ban to rebut the presumption that they have breached the Equal Protection Clause, by showing that they have a compelling justification for their marriage limitations. This, in the court’s judgment, Indiana and Wisconsin both wholly failed to do. ‘Simples’ as a certain meerkat might say.
In truth, attempts to defend same-sex marriage bans have been facing a struggle in the US ever since the possibility of direct moral condemnation of homosexuality was precluded by Lawrence v. Texas. The defendants arguments in Baskin v Bogan were objectively weak, and there can be little question that Posner does an effective and at times humorously serious job of highlighting the implausibility (if not absurdity) of the arguments and hence the irrationality of the states’ discrimination. The analysis is littered with some extremely pithy observations – one of the most striking perhaps being that bans on same-sex marriage are even more onerous than bans on interracial marriage because they allow gay people no real prospect of marriage at all, whereas intra-racial marriages were at least permitted (p. 29).
But it’s in its reasoning and its (unusually) explicit philosophical basis that the judgment gets interesting for my purposes. In the course of argument Posner reframes the case within a distinctly Millian consequentialism, arguing that legal intervention is only justified where the act complained of causes harm to another’s person or interests. This can be seen in three key points of the judgment. First, Posner establishes that the denial of same-sex marriage causes significant harms (economic and psychological) to members of the gay community. Secondly, he rejects the idea (in the absence of any concrete evidence to the contrary) that permitting same-sex marriage of itself undermines the institution of marriage in expressly Millian terms:
We know that many people want to enter into a same-sex marriage (there are millions of homosexual Americans, though of course not all of them want to marry), and that forbidding them to do so imposes a heavy cost, financial and emotional, on them and their children. What Wisconsin has not told us is whether any heterosexuals have been harmed by same-sex marriage. Obviously many people are distressed by the idea or reality of such marriage; otherwise these two cases wouldn’t be here. But there is a difference, famously emphasized by John Stuart Mill in On Liberty (1869), between the distress that is caused by an assault, or a theft of property, or an invasion of privacy, or for that matter discrimination, and the distress that is caused by behavior that disgusts some people but does no (other) harm to them. Mill argued that neither law (government regulation) nor morality (condemnation by public opinion) has any proper concern with acts that, unlike a punch in the nose, inflict no temporal harm on another person without consent or justification. The qualification temporal is key. To be the basis of legal or moral concern, Mill argued, the harm must be tangible, secular, material—physical or financial, or, if emotional, focused and direct—rather than moral or spiritual….
….[W]hile many heterosexuals (though in America a rapidly diminishing number) disapprove of same-sex marriage, there is no way they are going to be hurt by it in a way that the law would take cognizance of. Wisconsin doesn’t argue otherwise. Many people strongly disapproved of interracial marriage, and, more to the point, many people strongly disapproved (and still strongly disapprove) of homosexual sex, yet Loving v. Virginia invalidated state laws banning interracial marriage, and Lawrence v. Texas invalidated state laws banning homosexual sex acts. (33-34).
Thirdly, Posner then turns to the argument that the primary or sole reason for marriage law
is to try to channel unintentionally procreative sex into a legal regime in which the biological father is required to assume parental responsibility. The state recognizes that some or even many homosexuals want to enter into same-sex marriages, but points out that many people want to enter into relations that government refuses to enforce or protect (friendship being a notable example). Government has no interest in recognizing and protecting same-sex marriage, Indiana argues, because homosexual sex cannot result in unintended births. (15)
Posner addresses this claim over more than six pages of argument which, he asserts, demonstrate that the grounds advanced by lawyers for the two states “are not only conjectural; they are totally implausible.” He achieves this in two ways, by highlighting logical fallacies and inconsistencies in the argument, eg:
At oral argument the state‘s lawyer was asked whether “Indiana’s law is about successfully raising children,” and since “you agree same-sex couples can successfully raise children, why shouldn’t the ban be lifted as to them?” The lawyer answered that “the assumption is that with opposite-sex couples there is very little thought given during the sexual act, sometimes, to whether babies may be a consequence.” In other words, Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents—model citizens really—so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure. (19-20)
and by countering the evidential grounds relied on, eg:
The state’s claim that conventional marriage is the solution to that problem is belied by the state’s experience with births out of wedlock. Accidental pregnancies are found among married couples as well as unmarried couples, and among individuals who are not in a committed relationship and have sexual intercourse that results in an unintended pregnancy. But the state believes that married couples are less likely to abandon a child of the marriage even if the child’s birth was unintended. So if the state’s policy of trying to channel procreative sex into marriage were succeeding, we would expect a drop in the percentage of children born to an unmarried woman, or at least not an increase in that percentage. Yet in fact that percentage has been rising even since Indiana in 1997 reenacted its prohibition of same-sex marriage…. There is no indication that these states’ laws, ostensibly aimed at channeling procreation into marriage, have had any such effect. (23-24)
In both cases the sum effect is to demonstrate that the claimed benefits of the discriminatory policy do not or cannot justify the harms caused.
In the end, the Indiana and Wisconsin claims do not really constitute a hard case in the classical sense, but they are of interest in demonstrating how a judge can directly employ philosophical reasoning. I think they can also help highlight both the extent to which ‘harm’ itself can be a slippery concept, and that cases will often involve assessing competing harms, (as Posner observes, the state must be able to demonstrate that “the benefits to the state from discriminating against same-sex couples clearly outweigh the harms that this discrimination imposes” – p.5) rather than the straightforward choice between harm and no-harm that much of Mill seems to assume. Doubtless Posner would also contend that his consequentialism provides a more objective mechanism for dealing with such issues than a lengthy debate about fundamental rights or human dignity, but we are still left with the limitations of a consequentialist approach. The extent to which Posner’s approach relies on evidence of benefit/detriment is, arguably, one of its strengths – so long as the evidence is there, and is reliable, but what if the harms are finely balanced, or both sides are reduced equally to conjecture? Moreover, despite some fairly critical comments about elements of the defendants’ attempts to link marriage and parenting, Posner’s own reasoning relies heavily on the benefits of marital status to the adopted children of same-sex families, an argument that potentially falls flat in contexts where gay couples are still denied the right to adopt as well as the right to marry.