Ben Dreyfuss, in a wonderful Mother Jones article, relates some of the judicial opinion of federal judge Richard Posner, who just struck down gay marriage bans in Wisconsin and Indiana. Dreyfuss selects some wonderful quotes from the Posner's opinion. Posner proceeds to logically and pedantically poke holes in the naivete of different gender marriage morality.
What he does is reveal the fact that not all of our different gender marriages and pregnancies are the result of romantic, pure-as-the-driven snow rationale. Indiana argued that the ban against gay marriage should remain intact because gay people cannot have children. In fact, Posner reasons, it might be argued that any homosexual couple that wants to be parents might be considered the model because they just cannot get drunk and pregnant. See what Posner did there? He deflated this beautiful mythology about how all different gendered couples should get the reward of marriage because their biology allows them to, at times, make stupid decisions. Same gendered couples do not get to make those stupid mistakes, do not end up with unwanted pregnancies, and so they get penalized?
It is a brilliant piece of writing by Posner, recognizing that so much of these arguments are tied up in idyllic and romantic ideologies that have no basis in reality.
The last passage Dreyfuss quotes is Posner arguing against the contention that the LGBTQ community is politically powerful in a way that is far stronger than the numbers. Isn't that the real fear we hear in so many arguments from a fear-based mythology? They will become too many in number and overrun us? The minority will carry the day! We cannot let the gathering hordes destroy us! Rome will fall. As some of the best political writers do, Posner shows incredible faith in the democratic process by basically telling the fear mongers to settle down and recognize that they may be on the wrong side of history.
Here are the passages Dreyfuss quotes. Enjoy.
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.
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.
No evidence is presented by the state to support this contention [that homosexuals are politically powerful beyond their numbers]. It is true that an increasing number of heterosexuals support same-sex marriage; otherwise 11 states would not have changed their laws to permit such marriage (the other 8 states that allow same-sex marriage do so as a result of judicial decisions invalidating the states' bans). No inference of manipulation of the democratic process by homosexuals can be drawn, however, any more than it could be inferred from the enactment of civil rights laws that African-Americans "are politically powerful out of proportion to their numbers." It is to the credit of American voters that they do not support only laws that are in their palpable self-interest. They support laws punishing cruelty to animals, even though not a single animal has a vote.
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