Posner: Chief justice's gay-marriage dissent is 'heartless'

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Federal appeals judge Richard Posner is using an op-ed to criticize Chief Justice John G. Roberts Jr. for a “heartless” dissent in the gay-marriage case on Friday.

Posner says all four dissents in Obergefell v. Hodges are weak while Kennedy’s majority opinion “is convincing, though I would have preferred to see it longer on facts and shorter on sonorous quotations from previous Supreme Court decisions.” Posner, a judge with the Chicago-based 7th U.S. Circuit Court of Appeals, weighs in on the ruling upholding a constitutional right to gay marriage in Slate.

Posner’s first criticism of Roberts’ dissent focuses on the chief justice’s statement that for millennia, and across civilizations, marriage “referred to only one relationship: the union of a man and a woman.”

Posner’s response: “That’s nonsense; polygamy—the union of one man with more than one woman (sometimes with hundreds of women)—has long been common in many civilizations (let’s not forget Utah) and remains so in much of the vast Muslim world. But later in his opinion the chief justice remembers polygamy and suggests that if gay marriage is allowed, so must be polygamy. He ignores the fact that polygamy imposes real costs, by reducing the number of marriageable women.”

Posner also takes aim at Roberts’ statement that the majority has ordered “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?”

Posner’s response: “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.”

Posner goes on to say that gays “are hurt by the discrimination that the dissenting justices condone. Prohibiting gay marriage is discrimination.”

Among those who disagree with Posner is U.S. District Judge Richard Kopf, who writes at his Hercules and the Umpire blog. Kopf says Roberts’ dissent “reflects a sadness that the chief justice can’t join the majority.”

“Posner’s assertion that Chief Roberts’ dissent reflects a cold heart plus bigotry is a vicious lie—and Posner knows it,” Kopf writes.

Hat tip to How Appealing and Above the Law.

See also:

ABA Journal: “An interview with Judge Richard Posner”

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