When a Judge criticizes a Justice, it's best if the judge doesn't make mistakes of his own

|The Volokh Conspiracy |

Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit has penned a sharp critique of the dissenting opinions of Chief Justice John Roberts and Justice Samuel Alito in Obergefell v. Hodges (the same-sex marriage case) for Slate. As David notes below, some of what Posner writes seems to be at odds with his prior writings.

Judge Posner makes some good points, such as about the long history of polygamy in Western Civilization, and I agree with his bottom-line claim that state prohibitions on recognition of same-sex marriage serve no just purpose. Yet he also errs. Posner writes:

The only effort the chief justice makes to distinguish the Loving case from the same-sex marriage case is that it did not alter "the core structure of marriage as the union between a man and a woman." But the states that forbade miscegenation considered the prohibition an important part of the core structure of marriage. For they thought part of the core was that marriage be uniracial-that whites must just marry whites and blacks just marry blacks . . .

Contrary to Judge Posner's claim the law at issue in Loving did not require "that marriage be uniracial." To the contrary, the Virginia law justly struck down by the Court prohibited inter-marriage involving whites, but did not prohibit non-whites from marrying non-whites of other races. The law was exclusively about white "racial integrity." This fact was not essential to the Court's holding (as Chief Justice Warren discussed in footnote 11 to his opinion)—and did not make the law any less evil—but it's a fact nonetheless.