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Posner tradition

Pompous Judge Posner’s Morality and Logic Run Amok


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?

The good news is the best arguments in favor of retaining sexual complementarity in the legal definition of marriage have little to do with tradition and everything to do with logic and reality. Unfortunately, these arguments were not well-articulated by the two attorneys defending marriage, which is a problem all too common among many conservative attorneys, politicians, and pundits.

Since Posner suggested that bans on interracial marriage are analogous to so-called bans on same-sex “marriage,” a further discussion of the weakness of his analogy would have been helpful. Such a discussion would lead to the larger question that too few in society—including Posner—discuss, which is, “What is marriage?”

Posner, who Stern reveres for his grounding in logic and reality, asked this demagogic question of Samuelson:

Think back to when you were six. Suppose you’ve been adopted by same-sex parents. You come home one day from school, and you say, “You know, all the other kids in my class, they have a mom and a dad. I just have two dads (or two moms), and you know, what’s that about?” And suppose the parents say, “Well, you know, in our society an adult can marry a person of the opposite sex or a person of the same sex. But you know it’s marriage in both cases. So, your classmates, their parents are married. Your parents are married.”

….Now contrast that with a situation where the parents say to the child, “Well, you know, we’re your parents, but we’re not allowed to get married.” Which do you think is better for the psychological health and welfare of this child: to have a married same-sex couple or an unmarried?

What is remarkable is the absence of logic in Posner’s languid, intellectually vacant question, which is nothing more than an appeal to emotion.

Without a single argument or a definition of health and welfare (or their corollary, “harm”), Posner implies that the harm done to this child rests with marriage laws rather than the adults who have adopted this child, intentionally denying him or her a mother or a father.

Posner’s hypothetical scenario ignored the more essential and prior harm done to children acquired by homosexuals. Here’s a question for Posner: Which would be better psychologically for a child, to be raised by a mother and father or to be denied either a mother or father?

Posner was suggesting that marriage must be redefined by jettisoning the most fundamental feature of marriage (i.e., sexual complementarity) so that young children don’t feel bad about the volitional choices the adults raising them have made. The answer to the problem of children being denied a mother and father, however, is not to create a legal fiction that treats marriage as if it has no connection to sexual complementarity.

Further, Posner’s astonishing “argument,” if consistently applied, would preclude the expression of all moral propositions that make children “feel bad,” including any moral propositions codified in law.

The issue that Posner leaps over is that marriage actually has a nature that society merely recognizes. Society does not create marriage out of whole cloth. Most “progressives” even acknowledge that truth every time they assert that marriage is composed of two people. They believe that one of the inherent and immutable constituent features of marriage is its binariness.

Conservatives agree with “progressives” that marriage has a nature. We simply disagree on what that nature entails. Conservatives argue that sexual complementarity is the central constituent feature of marriage without which a relationship is not a marriage. In fact, it is the twoness of the sexes that accounts for the twoness of marriage in both reality and the law.

Posner goes on to say that “Indiana provides, and the federal government is carried along with it, very substantial and tangible benefits to a married couple. Now, don’t the children of a married couple, whether same-sex or opposite sex, don’t they benefit? The married parents are better off. They have all sorts of benefits….Doesn’t that make the kids better off?”

Here’s where Posner’s reductive argument fails: First, though children may benefit financially, they are harmed in other ways. Second, the financial benefits that would redound to the children of “married” same-sex couples no more justify the jettisoning of sexual complementarity from the legal definition of marriage than would the financial benefits that would redound to children being raised by siblings or polyamorists justify the jettisoning of the criterion regarding blood kinship or numbers of partners from the legal definition of marriage.

From his high and mighty perch, Posner was able to pose questions without ever having to answer any. Here are slightly altered forms of the questions that Posner asked of the two attorneys defending marriage and over which his fans slaver. Perhaps Posner could publicly share his responses:

  1. There’s been a tradition of banning plural marriages and marriages between siblings. Those bans are based on hate, aren’t they? You don’t think there’s a history of rather savage discrimination against polyamorists, polygamists, and siblings who love each other?
  1. Isn’t allowing plural marriages or incestuous marriages better for the psychological health and welfare of children being raised by polygamists, polyamorists, or close blood relatives (whether homosexual or heterosexual)?
  1. Why do you prefer adoption by couples to adoption by groups of more than two? Why do you prefer adoption by people not closely related by blood to homosexual siblings who love each other? Why punish children whose parents happen to be polyamorists or close blood relatives? Why do you want children being raised by polyamorists to be worse off, because they don’t have the financial and psychological benefits of having married parents?
  1. Isn’t it much better for kids to be adopted? If you allow plural marriage, you’re going to have more adopters, right? You should be wanting to enlist people as adopters.
  1. Who is being helped by bans on plural unions? How is society helped by plural union bans? No one is trying to force polyamorists into binary marriage. So, what is the harm of allowing these people to marry those they love? Does it hurt binary marriage?

I will add this question: Why should marriage be limited to people in relationships characterized by romantic/erotic love as opposed to platonic love or no love at all? How would society be harmed if two adult brothers in a platonic relationship were to “marry”? If these two brothers were to adopt children, how would their children be harmed if they were to be able to marry? How would society be harmed?

Posner’s words oozed arrogance and ignorance. Just another drop of arsenic into the water that America drinks like Kool-Aid.


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