Pompous Judge Posner’s Morality and Logic Run Amok

From Laurie Higgins:

On Tuesday August 27, Seventh Circuit Court of Appeals judge, Richard Posner, grilled attorneys from Wisconsin and Indiana who were defending true marriage. Posner’s noxious bias dripped unnoticed by Slate writer, homosexual Mark Joseph Stern, who sycophantically described Posner as possessed of an “unapologetic bias toward reality and logic.” Riiight…

While “progressives” took pleasure in the judicial demeanor of Posner, describing his “withering bench slaps” and “string of brutal retorts” as “exhilarating, satisfying, hilarious, and fun” “schadenfreude,” law professor Josh Blackman described Posner as a “bully from the bench.”

Perhaps Stern and Posner should spend some time thinking about the logical outworkings of these “progressive” propositions upon which the legal redefinition of marriage depend:

  • Marriage has no inherent connection to “gender” (aka biological sex).
  • Marriage has no inherent connection to procreative potential.
  • Marriage is solely constituted by love.

Those, I believe, fairly summarize the assumptions or propositions that animate the political Left. So, what are the logical implications of these non-objective assumptions?

Well, if marriage has no inherent connection to either biological sex or reproductive potential, how do “progressives”—most of whom defend marriage as inherently binary—defend their prohibition of plural unions? Where do they derive their notion that marriage is the union of two people? Conservatives have a rational explanation for the number two, an explanation which, by the way, derives from reality. There are two sexes. The sexual union of one member of each sex is the type of union that naturally produces children who have needs and rights that the government has a vested interest in protecting. The government has no interest in ascertaining fertility or in compelling procreation (and certainly no interest in affirming love). Rather, the government has an interest in recognizing, regulating, and promoting the type of relationship that naturally produces children.

What accounts for progressives’ interest in limiting marriage to two people? They certainly can’t appeal to “tradition” since they, like Judge Posner, hold tradition in contempt. And they can’t appeal to the needs and rights of children because they have argued that marriage has no inherent connection to children (which makes it passing strange that Posner spent so much time discussing the needs and rights of children).

And what about the logical implications of the Left’s proposition that marriage is solely constituted by love? Aren’t three, four, or five people capable of loving one another?

Let’s take a closer look at the infamous exchange  between the interrupting interlocutor Posner and Timothy Samuelson, the Wisconsin assistant attorney general tasked with defending marriage:

Posner: What concrete factual arguments do you have against homosexual marriage?

Samuelson: Well, we have, the Burkean argument, that it’s reasonable and rational to proceed slowly.

Posner: That’s the tradition argument. It’s feeble! Look, they could have trotted out Edmund Burke in the Loving case. What’s the difference? [Note: Loving v. Virginia was a 1967 decision striking down bans on interracial marriage]… There was a tradition of not allowing black and whites, and, actually, other interracial couples from marrying. It was a tradition. It got swept aside. Why is this tradition better?

Samuelson: The tradition is based on experience. And it’s the tradition of western culture.

Posner: What experience! It’s based on hate, isn’t it?

Samuelson: No, not at all, your honor.

Posner: You don’t think there’s a history of rather savage discrimination against homosexuals?

What is most notable but least discussed—at least by “progressives”—is how Posner twisted the argument. Samuelson appealed to tradition in defending marriage as inherently sexually complementary. Posner countered by citing bans on interracial marriage as examples of when tradition was wrong. Then Samuelson argued that tradition (i.e., the traditional view of marriage as sexually complementary) is based on experience, and Posner, either due to a failure in close listening or to being deafened by his own bias, declaimed, “What experience! It’s based on hate isn’t it?” Samuelson, referring to the traditional view of marriage as sexually complementary, disagreed with Posner regarding this tradition being based on hate. Posner responded with the non sequitur: “You don’t think there’s a history of rather savage discrimination against homosexuals?” Posner’s question was utterly irrelevant, since Samuelson clearly was not referring to the “tradition” of banning interracial marriage.

Was Posner suggesting that tradition is absolutely and always devoid of value and at odds with truth? Are our current traditions devoid of value and at odds with truth? Does the fecklessness of some traditions invalidate all traditions? Shouldn’t we discriminate between good and bad traditions? Shouldn’t we allow for the possibility that some traditions have value in the same way that some legal precedents have value despite the fact that others are informed by ignorance, irrationality, and even hatred?

Read more: Illinois Family Institute