Constitutional Law

Posner explains his changing views on gay marriage; should public opinion matter?

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In 1997, Judge Richard Posner reviewed a book advocating a right to same-sex marriage through changes in state laws and through constitutional rulings by courts.

Posner, a judge on the Chicago-based 7th U.S. Circuit Court of Appeals, thought the author, Yale law professor William Eskridge, made a powerful argument for legislative reform but he found his constitutional case lacking.

Posner said then that Eskridge had made “the tacit assumption that the methods of legal casuistry are an adequate basis for compelling every state in the United States to adopt a radical social policy that is deeply offensive to the vast majority of its citizens and that exists in no other country of the world.”

In 2014, however, Posner struck down bans on gay marriage in two states in a constitutional decision by the 7th Circuit. He explains his changing views in a Yale Law Journal “re-review” of the book, The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment. Above the Law, the Volokh Conspiracy and Josh Blackman’s Blog note the article.

In the re-review, Posner says it would have been a mistake for the U.S. Supreme Court to establish a right to gay marriage in 1997. “A change in public opinion was required to make the judicial creation of such a right acceptable. The change occurred,” Posner says.

When he wrote the 7th Circuit decision invalidating gay-marriage bans in Baskin v. Bogan, “the tide was running strongly in favor of invalidating such prohibitions,” Posner writes.

“I do think the change in public opinion was decisive for all the courts that ruled in favor of creating a constitutional right to same-sex marriage,” Posner continues. “Law is not a science, and judges are not calculating machines. Federal constitutional law is the most amorphous body of American law because most of the Constitution is very old, cryptic, or vague. The notion that the 21st century can be ruled by documents authored in the 18th and mid-19th centuries is nonsense.”

In a post for the Volokh Conspiracy, George Mason University law professor Ilya Somin asserts that Posner changed his mind for the wrong reasons.

“Posner’s argument suggests that courts should only enforce constitutional rights when majority opinion is on their side, or at least not too strongly opposed,” Somin writes. “Under Posner’s approach, judicial enforcement of constitutional rights would only occur when it is least needed—when public opinion supports it and there is at least a decent chance that the political process will protect the right on its own.”

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