Here Come Da Judge


Over at The New Republic, prolific author and controversial Judge Richard Posner weighs in on gay marriage via a review of Same-Sex Marriage and the Constitution, by Evan Gerstmann. He pooh-poohs the idea of the U.S. Supreme Court following the Massachusetts Supreme Court's lead:

I am dubious about interpreting the Constitution to authorize the Supreme Court to make discretionary moral judgments that offend dominant public opinion. Nothing in the Constitution or its history suggests a constitutional right to homosexual marriage. If there is such a right, it will have to be manufactured by the justices out of whole cloth. The exercise of so freewheeling a judicial discretion in the face of adamantly opposed public opinion would be seriously undemocratic. It would be a matter of us judges, us enlightened ones, forcing our sophisticated views on a deeply unwilling population.

His solution?

There is an alternative to judicializing the issue. It is to submit it to social experimentation. A great advantage of our federal system is that it enables large-scale social experiments, as the Supreme Court recognized recently when it authorized public school vouchers. We can subject the issue of homosexual marriage to experimentation as well.

This thinking tracks pretty well with that of some pro-gay marriage people, who want to avoid a replay of Roe v. Wade, which many feel undermined a slower but more consensual drive toward abortion rights (at the time of Roe, several states had either or were about to legalize abortion). While Posner's reading of the Constitution is correct, there is still something unsatisfying about an outcome that forces part of the population to rely on state-by-state "experimentation" in order to do what other Americans take for granted. Maybe it's time for the lily-livered folks in Congress to repeal the Defense of Marriage Act (signed, incidentally, by that great champion of alternative lifestlyes, Bill Clinton). Not that that will happen anytime soon, esp. in an election year.

Reason interviewed Posner a while back and he talked sharply about "Sex, Economics, and Other Legal Matters."

[Link via Arts & Letters Daily]