Judge Posner's troubling explanation for his shift on same-sex marriage

|The Volokh Conspiracy |

Back in 1997, Judge Richard Posner wrote a book review in which he rejected the idea that there is a constitutional right to same-sex marriage. Last year, however, he wrote a prominent judicial opinion striking down laws banning same-sex marriage, holding that they violate the Fourteenth Amendment. In this recent Yale Law Journal essay, Posner explains the reasons for his change of heart. The key factor he cites is not any legal argument, but rather the evolution of public opinion:

[A] decision by the Supreme Court in 1997 establishing a right to homosexual marriage in all states would have been a mistake. A change in public opinion was required to make the judicial creation of such a right acceptable. The change occurred. By 2011 a majority of Americans supported authorizing same-sex marriage. On the eve of the Obergefell decision [which struck down all state laws banning same-sex marriage in June], thirty-five states and the District of Columbia recognized same-sex marriage, though mainly as a result of lower-court decisions based on implications of the United States v. Windsor decision… By 2015 the time was ripe for the Supreme Court to lay the issue to rest….

The arguments against same-sex marriage were never strong. They didn't need to be when there was overwhelming passionate objection to such marriage. When the objection faded (not completely, but to a great extent, and with remarkable speed), the absence of strong arguments against same-sex marriage, and the presence of strong arguments in favor of it, became the decisive factors guiding judicial action.

Posner is the most influential federal judge below the level of the Supreme Court, and is also probably our most distinguished living legal scholar. In my view, he was absolutely right to change his mind on this issue. Unfortunately, however, he did it for the wrong reasons. The justification he offers for the switch should trouble even those of us who agree with Posner's new position on same-sex marriage more than the old one.

Posner's argument suggests that courts should only enforce constitutional rights when majority opinion is on their side, or at least not too strongly opposed. In 1997, as Posner put it in his earlier article, "[a]n overwhelming majority of the American people [were] strongly opposed to" same-sex marriage. But if this is a justification for refusing to strike down an otherwise unconstitutional law, it turns on its head the notion that one of the main functions of judicial review is precisely to protect individual rights against majority public opinion. Under Posner's approach, judicial enforcement of constitutional rights would only occur when it is least needed—when public opinion supports it and there is at least a decent chance that the political process will protect the right on its own. If anything, judges should be especially careful to enforce constitutional rights that are unpopular, since those are the ones that are least likely to be protected otherwise. If it is indeed true that "[t]he arguments against same-sex marriage were never strong," then gays and lesbians should not have had to wait until those rationales became unpopular, for judges to rule against them.

It may be that Posner does not mean to apply this rationale to all constitutional rights, but only to same-sex marriage and, perhaps, a limited range of other cases. If so, we need a theory of how to distinguish those rights that should be enforced regardless of public opinion from those that the courts should only protect when the public is on their side. Unfortunately, Posner does not give us much of one, except perhaps the suggestion [which he quotes from his 1997 review] that "[a] complex and by no means airtight line of argument would be necessary plausibly to derive a right to homosexual marriage from the text of the Constitution." But if hostile public opinion is enough to justify nonenforcement of a constitutional right in cases where the argument for the right is complex and not completely airtight, that would cut a wide swath through numerous other constitutional rights. The argument that the Fourteenth Amendment bans school segregation and laws forbidding interracial marriage also rests on fairly complex reasoning, and can't easily be derived from the text of the Constitution alone. Moreover, even back in 1997, Posner and other judges already had available to them the relatively simply and straightforward argument that laws banning same-sex marriage are unconstitutional because they discriminate on the basis of sex. That's a much clearer and less complex argument than those on which many important Supreme Court decisions rely.

Critics of the Supreme Court's ruling in Obergefell might argue that Posner's deference to public opinion was a good thing, at least so long as it led him to avoid striking down what they think are constitutional laws. But such deference could just as easily lead judges to abjure enforcement of unpopular constitutional rights that the opponents of same-sex marriage themselves value. In the currently emerging political environment, those may well soon include the rights of people who oppose homosexuality and same-sex marriage on moral or religious grounds.

There is no question that judicial decisions are often influenced by changes in public opinion. That is an inescapable reality of a system in which federal judges are appointed and confirmed through a political process and often depend on the other branches of government to enforce their rulings. But recognizing that empirical reality is very different from offering a normative justification for judicial nonenforcement of unpopular rights. At least as a general rule, judges should not base their decisions on same-sex marriage or other constitutional rights on the vagaries of majority public opinion.

UPDATE: Josh Blackman has some other criticisms of Posner's position here.