Posner on Gay Marriage

Last updated on May 25, 2012

Probably the best thing I have read on the issue of gay marriage:

[The gay] population is on the whole law-abiding and productively employed, and having a below-normal fertility rate does not impose the same costs on the education and welfare systems as the heterosexual population does. It is thus not surprising that in response to the President’s announcement of his support for homosexual marriage, Republican leaders cautioned their followers not to be distracted by this issue from the problems of the US economy. This was tacit acknowledgment that homosexual marriage, and homosexual rights in general, have no economic significance.

It seems that the only remaining basis for opposition to homosexual marriage, or to legal equality between homosexuals and heterosexuals in general, is religious. Many devout Christians, Jews, and Muslims are strongly opposed to homosexual marriage, and to homosexuality more generally. Why they are is unclear. If as appears homosexuality is innate, and therefore natural (and indeed there is homosexuality among animals), and if homosexuals are not an antisocial segment of the population, why should they be thought to be offending against God’s will? Stated differently, why has sex come to play such a large role in the Abrahamic religions? I do not know the answer. But whatever the answer, the United States is not a theocracy and should hesitate to enact laws that serve religious rather than pragmatic secular aims, such as material welfare and national security.

The emphasis is mine, but here is more from Richard Posner, and here is his co-blogger Gary Becker’s response.

Interestingly, in his post, Posner brings up the 1975 1967 Supreme Court decision in Loving v. Virginia. In that case, the Court held that prohibiting interracial marriage was unconstitutional.

I believe that is an important precedent which will likely be instrumental in eventually allowing gay marriage. From the Wikipedia article for Loving v. Virginia:

Although the Majority Opinion of the New York Court of Appeals in Hernandez v. Robles (2006) (which was overridden by the New York State Legislature via enactment of the Marriage Equality Act in 2011) rejected any reliance upon the Loving case as controlling upon the issue of same-sex marriage, holding that:

[T]he historical background of Loving is different from the history underlying this case. […] But the traditional definition of marriage is not merely a by-product of historical injustice. Its history is of a different kind. The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.

In the August 4, 2010 federal district court decision in Perry v. Schwarzenegger, which overturned California’s Proposition 8 (which restricted marriage to opposite-sex couples), Judge Vaughn Walker cited Loving v. Virginia to conclude that “the [constitutional] right to marry protects an individual’s choice of marital partner regardless of gender.” On more narrow grounds, the Ninth Circuit Court of Appeals affirmed.

In no way does this change what happened last week in my own state of North Carolina, but it does provide hope that things can change for the better.

(Update: Alfredo Goyburu writes to let me know that Loving v. Virginia was in 1967, not 1975. Duly noted, and thanks!)