Posner Shreds Chief Justice Roberts’ Dissent

Posner Shreds Chief Justice Roberts’ Dissent June 29, 2015

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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