Thursday, September 4, 2014
Just nine days after hearing argument, the Seventh Circuit has issued its opinion in Baskin v. Bogan. Unsurprisingly, the court affirmed the district court judgments “invalidating and enjoining . . . prohibitions of same-sex marriage.” In the 40-page opinion, Judge Posner took time to address the ineffectiveness of the arguments advanced by the petitioners. He wrote, “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.” (emphasis in original). Even though the states had significant legal precedent on their side, at the time of the oral arguments it did not seem like the Seventh Circuit was likely to be persuaded by any of those arguments. This opinion is final confirmation.
The opinion is lengthy but well-written and soundly reasoned. I’d like to highlight just a few characteristics. First, it is an excellent example of issue-framing to achieve a desired result. Rather than getting too bogged down in the minutiae of rational basis, Judge Posner effortlessly frames the question in such a way as to mandate a higher level of scrutiny. Specifically, he reasons that “more than a reasonable basis is required because this is a case in which the challenged discrimination is . . . ‘along suspect lines.’” Second, Judge Posner ably relies on scientific (non-law) data to support his conclusions. He even relates that data, through the “kin selection hypothesis” (or “helper in the nest theory”), to evolution by arguing that “[a]lthough it seems paradoxical to suggest that homosexuality could have a genetic origin, given that homosexual sex is non-procreative, homosexuality may, like menopause, by reducing procreation by some members of society free them to provide child-caring assistance to their procreative relatives, thus increasing the survival and hence procreative prospects of these relatives.” Finally, Judge Posner makes effective use of tabulation to smoothly advance the argument and signpost the logical connections of his reasoning. It’s a fantastic exemplar of writing that simplifies complex legal arguments in a sophisticated and accessible way. Definitely a fascinating and worthwhile read.