On September 4, 2014, the United States Court of Appeals for the Seventh Circuit handed down judgment in two combined cases – Baskin v Bogan; Wolf v Walker.
The cases were argued on August 26, 2014, before POSNER, WILLIAMS, and HAMILTON, Circuit Judges.
The cases concerned an appeal against District Courts decisions striking down laws prohibiting same-sex marriage in Wisconsin and Indiana, respectively.According to Judge Posner, who wrote for the Court, the cases were about “discrimination against the small homosexual minority in the United States. But at a deeper level, as we shall see, they are about the welfare of American children.”
The states argued that—
their prohibition of same-sex marriage is that the only reason government encourages marriage is to induce heterosexuals to marry so that there will be fewer “accidental births,” which when they occur outside of marriage often lead to abandonment of the child to the mother (unaided by the father) or to foster care.
Judge Posner quickly dismissed this argument. He holds that the argument overlooks ‘that many of those abandoned children are adopted by homosexual couples, and those children would be better off both emotionally and economically if their adoptive parents were married.’
In a well-written and spectacularly-reasoned judgment, Judge Posner continues to deliver a superb take down of all the myths around homosexuality and the legitimization of prohibition by states. He holds:
Discrimination by a state or the federal government against a minority, when based on an immutable characteristic of the members of that minority (most familiarly skin color and gender), and occurring against an historical background of discrimination against the persons who have that characteristic, makes the discriminatory law or policy constitutionally suspect.
Judge Posner continues to, ‘engage the states’ arguments on their own terms’ by asking a sequence of four questions:
1) Does the challenged practice involve discrimination, rooted in a history of prejudice, against some identifiable group of persons, resulting in unequal treatment harmful to them?
2) Is the unequal treatment based on some immutable or at least tenacious characteristic of the people discriminated against (biological, such as skin color, or a deep psychological commitment, as religious belief often is, both types being distinct from characteristics that are easy for a person to change, such as the length of his or her fingernails)? The characteristic must be one that isn’t relevant to a person’s ability to participate in society. Intellect, for example, has a large immutable component but also a direct and substantial bearing on qualifications for certain types of employment and for legal privileges such as entitlement to a driver’s li-cense, and there may be no reason to be particularly suspicious of a statute that classifies on that basis?
3) Does the discrimination, even if based on an immutable characteristic, nevertheless confer an important offsetting benefit on society as a whole? Age is an immutable characteristic, but a rule prohibiting persons over 70 to pilot airliners might reasonably be thought to confer an essential bene-fit in the form of improved airline safety.
4) Though it does confer an offsetting benefit, is the discriminatory policy overinclusive because the benefit it confers on society could be achieved in a way less harmful to the discriminated-against group, or underinclusive because the government’s purported rationale for the policy implies that it should equally apply to other groups as well? One way to decide whether a policy is overinclusive is to ask whether unequal treatment is essential to attaining the de-sired benefit. Imagine a statute that imposes a $2 tax on women but not men. The proceeds from that tax are, let’s assume, essential to the efficient operation of government. The tax is therefore socially efficient, and the benefits clearly outweigh the costs. But that’s not the end of the inquiry. Still to be determined is whether the benefits from imposing the tax only on women outweigh the costs. And likewise in a same-sex marriage case the issue is not whether heterosexual marriage is a socially beneficial institution but whether the benefits to the state from discriminating against same-sex couples clearly outweigh the harms that this discrimination imposes.
What follows is a spectacular takedown: a four-part analysis of states’ argument. However, for the bench, the answers to all these questions are ‘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.
We here at the Law Thinker believe that Judge Posner has laid down the ground work for a Supreme Court (SCOTUS) challenge. It is difficult to imagine SCOTUS disagreeing with him. Watch this space!
Read Full Judgment: Baskin v Bogan (PDF)
Comments
Share On
