Posner Shreds Chief Justice Roberts’ Dissent

Slate has been having something of a symposium on the Supreme Court making same-sex marriage legal nationwide, inviting scholars to weigh in on the matter. Legendary 7th Circuit Court of Appeals Judge Richard Posner aims his considerable intellect and eloquence at the main dissent of Chief Justice John Roberts and hits the mark.

The chief justice criticizes the majority for “order[ing] the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?” We’re pretty sure we’re not any of the above. And most of us are not convinced that what’s good enough for the Bushmen, the Carthaginians, and the Aztecs should be good enough for us. Ah, the millennia! Ah, the wisdom of ages! How arrogant it would be to think we knew more than the Aztecs—we who don’t even know how to cut a person’s heart out of his chest while’s he still alive, a maneuver they were experts at.

The only effort the chief justice makes to distinguish the Loving case from the same-sex marriage case is that it did not alter “the core structure of marriage as the union between a man and a woman.” But the states that forbade miscegenation considered the prohibition an important part of the core structure of marriage. For they thought part of the core was that marriage be uniracial—that whites must just marry whites and blacks just marry blacks—just as Orthodox Jews believe that the core structure of (their) marriage culture is both spouses subscribe to Orthodox Judaism.

The chief justice worries that the majority opinion has mounted “assaults on the character of fairminded people” who oppose same-sex marriage, by remarking that they impose “ ‘[d]ignitary wounds’ upon their gay and lesbian neighbors.” But of course they do, even if innocently, because a married couple doesn’t appreciate being told that their marriage, though legal, is sinful. That isn’t to say that people are forbidden to oppose same-sex marriage; it is merely to remark on one of the costs of that opposition and one of the reasons to doubt that it should be permitted to express itself in a law forbidding such marriage.

Related to the preceding point, the chief justice’s dissent is heartless. There is of course a long history of persecution of gay people, a history punctuated by such names as Oscar Wilde, Pyotr Ilyich Tchaikovsky, and Alan Turing. Until quite recently, many American gays and lesbians took great pains to conceal their homosexuality in order to avoid discrimination. They value marriage just as straight people do. They want their adopted children to have the psychological and financial advantages of legitimacy. They are hurt by the discrimination that the dissenting justices condone. Prohibiting gay marriage is discrimination.

Of course it is. And I marvel at the audacity of those who are now so terribly concerned that those who oppose marriage equality will be ostracized as bigots after showing no concern whatsoever for the decades, centuries, in which gay people have been ostracized from society and treated as pariahs. They clutch their pearls at being considered as bigots after not objecting, and in many cases themselves participating in, the wholesale demonization of gay people as demon-possessed pedophiles deliberately trying to destroy the country, the world, the species. If you didn’t say anything about that abuse, and especially if you participate in it, I don’t want to hear one fucking word about how unfair it is that the opponents of equality are being called bigots.

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  • sigurd jorsalfar

    And I marvel at the audacity of those who are now so terribly concerned that those who oppose marriage equality will be ostracized as bigots after showing no concern whatsoever for the decades, centuries, in which gay people have been ostracized from society and treated as pariahs.

    What are you talking about, Ed? Until liberals came along and, at the behest of their rule Satan, started legalizing teh gay, there were no gay people.

  • Pierce R. Butler

    … Aztecs—we who don’t even know how to cut a person’s heart out of his chest while’s he still alive, a maneuver they were experts at.

    I guess “we” in this case means just lawyers ‘n’ judges, or at any rate a set excluding surgeons (some of whom don’t even use obsidian blades any more!).

    … the chief justice’s dissent is heartless.

    An operation he apparently performed himself, further invalidating Posner’s previous point!

  • soratoyuki

    Does anyone else get the feeling that, if the court lineup had been different, Roberts would have been a 5th vote for equality? That he waited around to see where the other justices voted, and only went in the dissent when he realized he had that luxury? His dissent, which I’ve only skimmed, seems like such a weak, simply contradicted opinion that it seems to me there’s no way he actually believes it.

  • D. C. Sessions

    Perhaps what really galls them is the knowledge, in their hearts of hearts, that were the tables reversed they would be looking for retribution for the countless lives (quite literally) destroyed and years wasted, the constant fear of discovery, the agonies that I (who have never faced those issues for myself) cannot imagine.

    And that the people they have demonized for so long … aren’t. Because, in the end, they adhere more faithfully to the proclaimed values of Christianity (“do unto others,” “love your neighbor as yourself,” etc.) than they do. That, in fact, as a group the objects of their hatred and derision are better than they are. And that really is a bitter draght.

  • D. C. Sessions

    NB: that particular thought was especially prominent last week in Charlotte, but IMHO it’s a factor here too.

  • John Pieret

    The chief justice worries that the majority opinion has mounted “assaults on the character of fairminded people” who oppose same-sex marriage

    If they were fairminded people they would say ‘my religion doesn’t allow same-sex marriage but not everyone believes as I do so the American tradition of freedom means that consenting adults get to do what they think is right.’

  • colnago80

    Re soratoyuki @ #3

    As I said in a comment in an earlier thread here, my impression is that Roberts really isn’t personally opposed to same sex marriage. He just wants somebody else to decide the issue.

  • http://www.facebook.com/eo.raptor.3 eoraptor

    I did expect better from Chief Justice Roberts. Not that I expected him to join in the majority, but that a person of his reputation and skill, as it was prior to joining the Court, would have directly faced the constitutional issues. If his reasoning — whatever that might have been — then lead him to the conclusion that the 14th Amendment did not encompass marriage among gay and lesbian people, so be it. His dissent in that case would have at least appeared rational, well thought out, and maybe even logical (but, likely not). What we got instead were the hysterical rantings of an uber-Catholic who could use some schooling on just what the wholly babble actually says. An embarrassing day for him, I would think.

    As for the wholly, unholy, trinity of Scalia, Thomas, and Alioto… I guess haters got to hate.

  • D. C. Sessions

    John, the whole “America stands for MYOB” thing was only a polite cover as long as everyone knew what to do without being told.

  • http://artk.typepad.com ArtK

    This is someone I would like to see on the Supreme Court. I think that Alex Kozinski of the 9th Circuit should also get consideration.

  • marcus

    colnago80 @ 7 Fuck Roberts and his delicate sensibilities. I hope his lesbian cousin called him up and chortled in his general direction.

  • colnago80

    Re soratoyuki @ #3

    That is unlike the other 3 dissenters who I am convinced are viscerally opposed to same sex marriage.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    Pierce R. Butler “…or at any rate a set excluding surgeons (some of whom don’t even use obsidian blades any more!).”

    I used to carry one, but it shattered after I failed a Saving Throw vs Acid Breath when fighting the green dragon at the end of The Dragon of Molten Moor.

  • colnago80

    Re ArtK @ #10

    Posner is 76, which is too old for an appointment to the SCOTUS. Current appointments lean towards people less then 60.

    Re Marcus @ #11

    I don’t know where Robert’s voting residence is but if it is in Maryland, it would be interesting to know how he voted in the 2014 referendum on same sex marriage.

  • Al Dente

    The chief justice worries that the majority opinion has mounted “assaults on the character of fairminded people” who oppose same-sex marriage

    The First Amendment says that religious dogma is not a justification for legal action, RFTA and Burwell v. Hobby Lobby not withstanding.

  • gshelley

    To be fair, until yesterday, everyone accepted the “I’m not a bigot, God is” explanation, but since the court said marriage was a right, everyone now thinks that people who oppose it are bigots no matter what the reason.

    Actually, that didn’t happen.

  • Larry

    And most of us are not convinced that what’s good enough for the Bushmen, the Carthaginians, and the Aztecs should be good enough for us

    Let’s take this a step further and argue that a large number of us are not convinced that what was good enough for some middle eastern desert goat herders (purportedly) 2000 years ago should be good enough for us now, certainly not to the point where any of it is enshrined as law into our legal system.

  • D. C. Sessions

    Posner is 76, which is too old for an appointment to the SCOTUS. Current appointments lean towards people less then 60.

    And by the end of the next Republican administration, less than 50. I’m only partly joking about appointing the graduating class of Liberty University Law School to the Federal Bench — it’s the surest way to guarantee Party loyalty for as long as possible.

  • whheydt

    Re: soratoyuki @ #3…

    As I understand SCOTUS procedures, they vote in reverse order of seniority, and the chief justice is–ex officio–the most senior. So he always votes last.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    whheydt “As I understand SCOTUS procedures, they vote in reverse order of seniority, and the chief justice is–ex officio–the most senior. So he always votes last.”

    It used to go by Arm Wrestling, but Ruth Bader Ginsburg fucking ruined them. Greco-Roman wrestling, too. And, Pro-Wrestling. Sure, Alito kind of enjoyed it, but then she started going for the balls. They had to come up with a new system that didn’t end up with them crushed by a little old lady.

  • dmcclean

    I agree with #2 that the cutting hearts out of chests thing was a terrible choice of analogy.

  • Doug Little

    Modus @20,

    Ladder Match?

  • colnago80

    Posner had some fun with the attorney arguing for the State of Wisconsin, giving him a hard time during the appeal to the 7th Circuit Court of Appeals. He strikes me as someone who does not suffer fools gladly.

  • xuuths

    So let me get this right . . . Chief Roberts somehow seems completely ignorant of all the prior SCOTUS rulings that determined marriage was a fundamental right, and now insists that the majority is just making it up? Really? Is he that out of touch with SCOTUS rulings? Are his clerks completely incompetent? Did he not read the briefs or listen to the testimony where that is expressly brought up?

    Again, did Chief Roberts and his staff not read the amicus briefs that described at length the various ways “traditional marriage” has changed over the eons, not pay attention when they were discussed in oral arguments?

    He claims to be a christian, but clearly hasn’t read or understood or recalls the bible where it describes a bunch of different “traditional marriages” that are not one-man-one-woman. Isn’t that a problem?

  • http://artk.typepad.com ArtK

    Posner is 76, which is too old for an appointment to the SCOTUS. Current appointments lean towards people less then 60.

    I know. I can still wish that he were there instead of Roberts, Scalia, Alito or Thomas.

  • colnago80

    Re ArtK @ #25

    In fairness, Posner appeared to be a lot more conservative 20 years ago then he does now. Not clear if he left the Rethuglican party or the party left him.

  • EnlightenmentLiberal

    In the link in the OP, Posner goes straight to John Stuart Mill and On Liberty. <3

  • laurentweppe

    How arrogant it would be to think we knew more than the Aztecs—we who don’t even know how to cut a person’s heart out of his chest while’s he still alive, a maneuver they were experts at.

    Actually, we do

  • CJO, egregious by any standard

    “assaults on the character of fairminded people”

    I’m really having trouble with this.

    Is it me, or if this were to be some kind of precedent guiding jurisprudence, would it be the absolute worst standard, and one that could be applied to every case ever argued?

    Judge: “Well, I’d love to decide in your favor, plaintiff, as the facts and the law appear to support your case, but I’m afraid that would constitute an assault on the character of the fairminded defendant, so I’m afraid I can’t”

    And what is it about unfairminded people that makes their characters fair game for judicially-abetted assault? Their lack of fairmindedness? Are judges routinely called on to distinguish between the fairminded and the unfairminded? So much wrong…

  • buttle

    Robert’s dissent will go down in history just like Burger’s concurrence in Bowers v. Hardwick, you don’t write such insanity if you don’t actually believe it:

    As the Court notes, ante at 192, the proscriptions against sodomy have very “ancient roots.” Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law. See Code Theod. 9.7.6; Code Just. 9.9.31. See also D. Bailey, Homosexuality [p197] and the Western Christian Tradition 70-81 (1975). During the English Reformation, when powers of the ecclesiastical courts were transferred to the King’s Courts, the first English statute criminalizing sodomy was passed. 25 Hen. VIII, ch. 6. Blackstone described “the infamous crime against nature” as an offense of “deeper malignity” than rape, a heinous act “the very mention of which is a disgrace to human nature,” and “a crime not fit to be named.” 4 W. Blackstone, Commentaries *215. The common law of England, including its prohibition of sodomy, became the received law of Georgia and the other Colonies. In 1816, the Georgia Legislature passed the statute at issue here, and that statute has been continuously in force in one form or another since that time. To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.

    It’s also historically misleading: Theodosius came near the very end of the roman empire, Justinian is already a byzantine emperor, and they were both eastern christian theocrats forcing judeo-christian values on their citizens.