Judge Posner is often compared to Justice Holmes. In fact, Posner venerates Holmes. While I am not a fan of Justice Holmes’s jurisprudence, I don’t know that this comparison is particularly flattering for a Circuit Justice who has to contend with an additional century of binding constitutional law. Justice Holmes was through and through a common law judge. He wrote from first principles, building on precedent as needed, and developing the law in the direction he thought proper.
Even if this was the appropriate role for a Supreme Court Justice with respect to constitutional law at the turn of the 20th century (debatable), it is much harder to justify this free-wheeling approach for a Circuit Judge in the year 2014. We have a lot of precedent. It’s messy. And it doesn’t always fit together. Sometimes, Circuit Judges are bound by precedents that cannot be reconciled, and they must decide by their best lights. But, and this is key, they try to fit their decision into the precedent, as best they can.
And then there’s Judge Posner. His decision in the same-sex marriage case is rich in discussion of principles of equality, as a matter of first principles. But with respect to judicial precedent, it is really, really flimsy. You can read entire pages without seeing a single citation to anything, other than his own Holmesian sense of the law. Contrast this with thoughtful decisions from the 4th and 10th Circuits, which are grounded thoroughly in the Court’s precedents. Posner is a brooding omnipresence in the sky unto himself. While this makes for an entertaining read, from a jurisprudential perspective, it’s a mess.
I’m reminded of something Orin Kerr wrote a few years ago about a Posner 4th Amendment decision:
I am often filled with a mild sense of both excitement and dread when I learn that Judge Posner has authored an opinion in areas of law that I follow closely. Excitement, because I know it will be fascinating to read. And dread, because I know it will be filled with extensive error-prone dicta on issues not briefed and reasoning that is hard to square with existing precedents.
This is exactly right. In Baskin, there was little effort to try to fit the decision into the Court’s precedents. If anything, Posner was trying to reimagine the Court’s precedents to fit the facts of same-sex marriage. (I’m sure he would tell you he knows better than the Nine). His disinterest in the Court’s case law is evident in the first few pages, where he breezily makes his way through some precedents, that say something about what he wants, and then he goes for a philosophical analysis of the costs and benefits of same-sex marriage. The rest of the decision is heavy with citations to social science, and light with citations to the Supreme Court.
Let’s walk through this analysis.
First, he quotes from FCC v. Beach, a Thomas opinion that lays out the quintessential version of the uber-deferential rational basis test. You would think this citation suggests that he will apply rational basis test. But no. He focuses on the fact that the rational basis test does not apply to suspect classes:
We are mindful of the Supreme Court’s insistence that “whether embodied in the Fourteenth Amendment or in- ferred from the Fifth, equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor in- fringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993) (emphasis added). The phrase we’ve italicized is the exception applicable to this pair of cases.
You would think this summary would be followed by a discussion of why gays and lesbians are suspect classes. You know, an effort to fit the decision in with the Court’s precedents. But no. The word “suspect” only appears in the next page, where he explains that even if the class is not “suspect,” the court still applies some scrutiny that is higher than rational basis.
We hasten to add that even when the group discriminated against is not a “suspect class,” courts examine, and sometimes reject, the rationale offered by government for the challenged discrimination. See, e.g., Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam); City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 448–50 (1985).
What makes this citation fascinating, is that the Court REVERSED Posner in Olech. (I wrote an article about this case). The Court held that a class of one need not be a suspect class, and that it is difficult to show animus!
In the Seventh Circuit—the origin of Olech—Judge Posner reaffirmed his insistence that an equal protection claim must show a “vindictive action” which requires proof of a “totally illegitimate animus” against the plaintiff. ….
On appeal circuit Judge Posner found that an “orchestrated campaign” was a sufficient, but not necessary, condition to state a claim as a class of one and “that the ‘vindictive action’ class of equal protection cases requires proof that the cause of the differential treatment . . . was a totally illegitimate animus.”104 Judge Posner remanded for further factual findings.105
In other words, Posner went out of his way to find a lack of animus against a class of one. The Supreme Court reversed in an odd, short per curiam opinion. Following the remand, Judge Posner read narrowly the Court’s per curiam decision, and sided with Justice Breyer’s concurring opinion:
Judge Posner adopted Justice Breyer’s alternative theory and mandated a finding of subjective motivations.145 Citing its decision in Olech, the Hilton court noted that the claim requires “proof that the cause of the differential treatment of which the plaintiff complains was a totally illegitimate animus toward the plaintiff by the defendant.”146 Because the plaintiff did not prove that the government action was motivated by an illegitimate animus, the court found that the plaintiff had not pled a class of one.147 Making a policy argument against flooding the federal courts with cases where plaintiffs are merely treated differently, Judge Posner reasoned that “[i]f a merely unexplained difference in police treatment of similar complaints made by different people established a prima facie case of denial of equal protection of the laws, the federal courts would be drawn deep into the local enforcement of petty state and local laws.”148
There is some irony here, because Posner was absolutely insistent that there be a clear showing of animus.
Anyway, back to Baskin. After explaining why rational basis review doesn’t apply when there is a suspect class, but declining to address whether there is a suspect class, and after explaining why a class need not be suspect to receive judicial scrutiny (a decision Posner disagreed with, and was reversed by), Posner explains that neither Wisconsin nor Indiana offers a “reasonable basis” to justify the law.
We’ll see that the governments of Indiana and Wisconsin have given us no reason to think they have a “reasonable basis” for forbidding same-sex marriage.
Why “reasonable” and not “rational”? Posner cites Vance v. Bradley, a case concerning age discrimination. While it isn’t abundantly clear what level of scrutiny is being applied (the 1979 opinion is a bit murky), Justice White refers to it as “intermediate standard,” suggesting some form of heightened scrutiny. As an aside, of all the equal protection cases to cite, why this one? I’ve never heard of it, and there are so many other decisions that fit in closer (Romer, Lawrence, etc.). I suspect that the use of the word “reasonable” rather than “rational” fits the bill. Posner leap-frogs over this point, because as he discusses later, scrutiny is nothing more than “semantics.” But, “heightened scrutiny” applies.
Then, we go back to whether there is a “suspect” class, and the not-normal classification applies.
And more than a reasonable basis is required because this is a case in which the challenged discrimination is, in the formula from the Beach case, “along suspect lines.”
Posner doesn’t say there is a suspect class, but says the classification is “along suspect lines.” Again, he stops short of actually fitting the analysis into the precedents. Also, is it common in an opinion to say “the Beach case” rather than “Beach”? This is a common locution in oral arguments, but usually in a written opinion, you cite the case. (See the stream of consciousness).
What the opinion does say, in an interesting synthesis of precedents, is that discrimination based on “immutable characteristic,” with a history of discrimination, makes a classification suspect.
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 discrim- inatory law or policy constitutionally suspect. See, e.g., Bow- en v. Gilliard, 483 U.S. 587, 602–03 (1987); Regents of University of California v. Bakke, 438 U.S. 265, 360–62 (1978); St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616, 638 (7th Cir. 2007); Wilkins v. Gaddy, 734 F.3d 344, 348 (4th Cir. 2013); Gallagher v. City of Clayton, 699 F.3d 1013, 1018–19 (8th Cir. 2012).
Missing here is a clear statement that gays and lesbians are a suspect class. This is what lower courts would need to proceed. It’s almost like he’s teasing this holding. The closest he gets is saying that sexual orientation is almost certainly an immutable characteristic.
And there is little doubt that sexual orienta- tion, the ground of the discrimination, is an immutable (and probably an innate, in the sense of in-born) characteristic ra- ther than a choice.
And let’s look closer at the precedents cited. In Bowen, the phrase “suspect” only appears in block quote from Lyng v. Castillo.
“The disadvantaged class is that comprised by parents, children, and siblings. Close relatives are not a `suspect’ or `quasi-suspect’ class. As a historical matter, they have not been subjected to discrimination; they do not exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group; and they are not a minority or politically powerless.
The citation to Bakke is from Justice Brennan’s opinion. Odd that there is no parenthetical clarifying that. Neither precedent fully supports those propositions.
Next, Posner explains that with suspect classes (which we can presume gays are), there is a presumption of unconstitutionality.
These circumstances create a presumption that the discrimination is a denial of the equal protection of the laws (it may violate other provisions of the Constitution as well, but we won’t have to consider that possibility).
He alludes to the fact that there may be due process problems, but doesn’t need to reach that issue.
Next, Posner jumbles together scrutiny.
The presumption is rebuttable, if at all, only by a compelling showing that the benefits of the discrimination to society as a whole clearly outweigh the harms to its victims. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 326–27 (2003); United States v. Virginia, 518 U.S. 515, 531–33 (1996).
Grutter, involving race, was an application of strict scrutiny. Virginia, involving gender, was an application of intermediate scrutiny. These are different things. “Compelling showing” speaks to the government’s burden, but is not a phrase that is used in constitutional litigation. There is no mention here of tailoring (that comes later).
In the next paragraph, Posner explains why it doesn’t really matter what tier of scrutiny is being used.
The approach is straightforward but comes wrapped, in many of the decisions applying it, in a formidable doctrinal terminology—the terminology of rational basis, of strict, heightened, and intermediate scrutiny, of narrow tailoring, fundamental rights, and the rest. We’ll be invoking in places the conceptual apparatus that has grown up around this terminology, but our main focus will be on the states’ arguments, which are based largely on the assertion that banning same-sex marriage is justified by the state’s interest in channeling procreative sex into (necessarily heterosexual) marriage.
Let’s unpack this. First, scrutiny is hardly straightforward, if you follow the Court’s precedents. It is indeed wrapped in a “formidable doctrinal terminology.” Many, many decisions are wrapped around this core.
Second, Posner almost doesn’t seem to care about the Court’s actual terminology, such as “rational basis, of strict, heightened, and intermediate scrutiny, of narrow tailoring, fundamental rights, and the rest.” And the rest? This case is so easy, so “straightforward,” that we need not be bogged down by such terminology. He refers to this framework, developed by the court, almost pejoratively, as “the conceptual apparatus.” Charitably, this evinces only a glancing concern for the Court’s precedents. Brutally, conceptual means it is devoid of reality. In contrast with Posner’s own actual analysis.
Third, rather than sticking to these tests, his “main focus will be on the states’ arguments, which are based largely on the assertion that banning same-sex marriage is justified by the state’s interest in channeling procreative sex into (necessarily heterosexual) marriage.” In other words, we are doing Posner scrutiny.
As an aside I agree with Posner here. The Court’s tiers of scrutiny are largely unhelpful, and indeed boil down to which party bears the burden of persuasion, and what ist he size of the burden. When a person’s individual liberty is infringed, I think the state should bear a strong burden to justify their actions. I’ve argued for a Coasean view of liberty. But this isn’t exactly what the Court’s cases say.
Then, Posner turns to what he sees as the “heart” of equal protection doctrine. He lists a number of questions, which have a passing familiarity with the Court’s constitutional law doctrine.
Our questions go to the heart of equal protection doc- trine. Questions 1 and 2 are consistent with the various for- mulas for what entitles a discriminated-against group to heightened scrutiny of the discrimination, and questions 3 and 4 capture the essence of the Supreme Court’s approach in heightened-scrutiny cases: “To succeed, the defender of the challenged action must show ‘at least that the classifica- tion serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.’” United States v. Virgin- ia, supra, 518 U.S. at 524 (1996), quoting Mississippi University for Women v. Hogan, 458 U.S. 718, 724 (1982).
Again, the VMI case was an application of intermediate scrutiny. But if gays are a suspect class, then strict scrutiny would apply. Are gays instead a quasi-suspect class, warranting intermediate scrutiny? We don’t know. Not like any of this matters.
And next, we get to the core of Posner’s anti-jurisprudence.
The difference between the approach we take in these two cases and the more conventional approach is semantic rather than substantive.
So here we have two standards. On the one hand, we have what he calls the “more conventional approach.” Or, what I would call *binding Supreme Court precedent.* This isn’t conventional. It’s what every single judge is supposed to follow. It’s what every single judge who ruled on a same-sex case followed. But not Posner. On the other hand, we have “the approach we take.” This is the law according to Dick Posner. And what is the difference? It’s not “substantive,” even though he jumbles together tiers of scrutiny, suspect and quasi-suspect classes, and liberally cites precedents. It’s “semantic”! Semantic! Same thing, different name, right?
Posner proceeds to criticize the “conventional approach” (that is, the Court’s approach):
The conventional approach doesn’t purport to balance the costs and benefits of the challenged discriminatory law. Instead it evaluates the importance of the state’s objective in enacting the law and the extent to which the law is suited (“tailored”) to achieving that objec- tive. It asks whether the statute actually furthers the interest that the state asserts and whether there might be some less burdensome alternative. The analysis thus focuses not on “costs” and “benefits” as such, but on “fit.”
That’s right. The Court’s precedents focus on a means-ends “fit.” It doesn’t focus on a “cost” and “benefits” analysis. Only Justice Breyer loves the latter, European-style balancing framework.
That is why the briefs in these two cases overflow with debate over whether prohibiting same-sex marriage is “over- or underinclusive”—for example, overinclusive in ignoring the effect of the ban on the children adopted by same-sex couples, under- inclusive in extending marriage rights to other non- procreative couples.
Unsurprisingly, this is how the parties litigated the case–according to prevailing precedents.
But to say that a discriminatory policy is overinclusive is to say that the policy does more harm to the members of the discriminated-against group than necessary to attain the legitimate goals of the policy, and to say that the policy is underinclusive is to say that its exclusion of other, very similar groups is indicative of arbitrariness.
Nonetheless, Posner reimagines the precedents according to his own vision, of harms and benefits.
After that, there is little to no constitutional law in the decision. This is Holmesian common law reasoning, that can only loosely be called constitutional law.
The word “animus” appears once.
This suggests animus against same-sex marriage, as is further suggested by the state’s inability to make a plausible argument for its refusal to recognize same-sex marriage.
He mentions heightened scrutiny in a few places, although as I noted, never fully explains if gays and lesbians are a suspect class.
The discrimination against same-sex couples is irra- tional, and therefore unconstitutional even if the discrimina- tion is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.
Also, his equal protection analysis bleeds into his (absent) due process analysis, as there is talk of the deprivation of a right due to a classification.
We begin our detailed analysis of whether prohibiting same-sex marriage denies equal protection of the laws by noting that Indiana and Wisconsin, in refusing to authorize such marriage or (with limited exceptions discussed later) to recognize such marriages made in other states by residents of Indiana or Wisconsin, are discriminating against homo- sexuals by denying them a right that these states grant to heterosexuals, namely the right to marry an unmarried adult of their choice.
And, when finding a violation of equal protection, all discussion of scrutiny drops out:
In light of the foregoing analysis it is apparent that groundless rejection of same-sex marriage by government must be a denial of equal protection of the laws, and there- fore that Indiana and Wisconsin must to prevail establish a clearly offsetting governmental interest in that rejection.
A degree of arbitrariness is inherent in government regu- lation, but when there is no justification for government’s treating a traditionally discriminated-against group signifi- cantly worse than the dominant group in the society, doing so denies equal protection of the laws.
All of the praise of Judge Posner’s readable, persuasive decision, misses the fact that it shows only a passing concern for the Court’s precedents (which he doesn’t think much of).