Judge Richard Posner’s opinion for the Seventh Circuit Court of Appeals in Baskin v. Bogan, which invalidated Indiana’s and Wisconsin’s definition of marriage, has been widely acclaimed as ending the argument. According to Posner, all state laws defining marriage as between a man and a woman are patently unconstitutional. In his words, “discrimination against same-sex couples is irrational,” “groundless,” and the arguments put forward to justify it are “totally implausible.” Those who celebrate Posner’s opinion proclaim that his reasoning is unanswerable, and that it provides a template for all courts that will hear marriage cases in the future.
In truth, the argument that Posner is said to have refuted remains compelling. His judgment is one long attempt to hide from that argument and to conceal it from his readers. In its refusal to engage the opposing argument, Posner’s opinion disgraces the federal judiciary.
Indiana’s Argument: Optimality and Biological Parenthood
Although Posner’s opinion did not present it with even minimal integrity, Indiana’s final brief puts forth a clear argument. Here are five statements of that argument as articulated in the brief:
For Indiana, marriage is a licensing and regulatory scheme with the role and function of encouraging the optimal environment (i.e., where both biological parents are present) for raising the children that inevitably result from widespread opposite-sex intercourse. . . .
The State’s objective is … substantive: to encourage childrearing by both biological parents in tandem, a circumstance that can arise only with opposite-sex couples, not same-sex couples. . . .
Here, traditional marriage advances the State’s interests in encouraging biological parents to raise their offspring together, and same-sex marriage does not. . . .
[Married couples,] whose sexual relationships create babies, have the most critical parenting ‘skill’ of all: a biological and legal relationship to the child.
. . . the traditional family context is the best environment for procreating and raising children. [Emphases added.]
Indiana’s argument is that its definition of marriage has a legitimate and important aim and is a means well-tailored to that aim, a means that involves no prohibition, and is simply not concerned with prohibitions. Nevertheless, Posner’s opinion says, dozens of times, that the states prohibit, ban, forbid same-sex marriage. Among people who can distinguish between not recognizing and forbidding, that’s an untruth.
The argument’s two key, interlocked elements are optimality (what sort of child-raising is best for children) and biological parenthood (which results from sexual intercourse—the only form of sexual activity capable of generating a child). Indiana claims again and again that the two elements fit reality, and fit each other, in the belief and intention of its legislature, and in “the entire experience of Western civilization.”
Posner takes exquisite care never to allow the two elements to appear together, even by implication. His judgment never once confronts, or even mentions or alludes to, Indiana’s central, reiterated claim.
Yet Posner has affirmed, without reservation, the central element: the inherent link between biological parenthood and optimal outcomes for children. Parenting takes devotion. Whether one calls it love or altruism, parenting undeniably takes willingness to put the interests of the child ahead of one’s own. In his 1992 book, Sex and Reason, Posner himself wrote: “More than common sense supports the assumption: that altruism is greater towards persons (especially persons who are or will be fertile) who share one’s genes is a fundamental implication of sociobiology.”
Marriage Matters, Whether or Not Children’s Conception Is Intentional
As anyone can see by looking at the quotations above, Indiana’s primary concern was with ensuring the optimal upbringing possible for all children. To evade this claim, Posner reduced it to a mere fragment, what he called again and again “the problem of ‘accidental births,’ which the state contends is the sole governmental interest in marriage.” Indiana’s briefs made no such contention. The sole reference to unintentional procreation in Indiana’s definitive 25-page brief is this: “same-sex couples cannot procreate, while the general capacity of opposite-sex couples to procreate through sexual activity—even unintentionally—gives rise to the State’s interests in marriage.”
Posner’s opinion—not any argument advanced by Indiana—bizarrely claims that where procreation is intended marriage is unnecessary, because “when a child is conceived intentionally, the parents normally intend to raise the child together.” In the real world, of course, child-raising lasts for many years after the child’s conception. Even when that conception was intended and welcome, a solemn, publicly given and legally supported mutual commitment is a much-needed framework for sustaining the intention through years of changing, perhaps very unfavorable circumstances.
Something—conceivably Posner’s bizarre thesis—led Indiana’s lawyer to allude, irrelevantly, to the frequency of unintentional conception among the married. This was in response to the question of why same sex couples can’t marry if, as he had accepted, they “can successfully raise children.” But the issue for Indiana is not possibility (“can successfully”) but optimality in meeting the challenges that children’s conception, gestation, birth, and care pose to couples whose sexual intercourse results, whether thoughtfully or thoughtlessly, in children.
Instead of sorting this out with a modicum of seriousness, Posner pivots off the lawyer’s confused reply, caricatures it in two sentences of fallacious rhetorical misrepresentation, and then—famously—concludes, “Go figure.” Then, his strawman still in place, Posner knocks it down again:
encouraging marriage is less about forcing fathers to take responsibility for their unintended children—state law has mechanisms for determining paternity and requiring the father to contribute to the support of his children—than about encouraging parents to contribute to a stable relationship in which they will be raising the child together.
You might think that here Posner is at last setting out Indiana’s argument. But he is not. For Posner, throughout his opinion, “parents” just means the people who are raising the child. So both (1) optimality in child-raising and its necessary condition, (2) biological parenthood, have dropped out, along with (3) sexual intercourse, the only possible cause of (2).
Marriage as a Plan of Life
Optimality in child-rearing is not just, or even primarily, about getting results that social scientists might tabulate. This optimality is primarily about the intrinsic desirability of those loving and helping relationships that—while joining mothers to fathers in friendship—join each of them to their children for the sake of those children. Posner was correct in reporting that these relationships have a genetic substratum such as no merely willed relationship, however needed and admirable, can provide. But no amount of genetic substratum or animal instinct will suffice without the integrating of these into a plan of life, of commitment, that the parents envisage and value.
The institution of marriage defended by Indiana and Wisconsin is precisely such a plan of life. Its fundamental simplicity and intelligibility encourage men and women whose sexual intercourse may result in children to enter into marriage. Though married couples can adopt children for want of, or in addition to, their own, the institution of marriage is not essentially concerned with child-raising by adoption. It creates a framework that provides for the children that no sex act other than intercourse can procreate. However much sexual satisfaction each may give the other, if either spouse turns out to be incapable of consummating the marriage by sexual intercourse, it is legally subject to a declaration of nullity on either party’s petition to the court.
The Problem of Polygamy
Same-sex coupling cannot procreate because it cannot be sexual intercourse (i.e., a union of a male’s with a female’s sexual organs). So the sexual conduct of same-sex partners is simply irrelevant to marriage. Indiana’s briefs set out this point quite clearly. They also point out the state’s policy of encouraging responsible procreation and upbringing, adding: “If marriage exists only as ‘symbolic imprimatur,’ replete with benefits and regulations, having no connection to any particular state policy, there is no reason for the State to refuse it to . . . any limited set of relationships . . .” This includes polygamous relationships. But Posner ignores this point, and Indiana’s concerns about polygamy go unreported and unanswered in his opinion.
Indeed, Judges Posner, Williams, and Hamilton double down on polygamy. In their one reference to marriage’s optimality—carefully separated pages away from any reference to biological parenthood, and in answer to Wisconsin, not Indiana—they say:
No evidence in support of the claim of optimality [for the family, society, and civilization] is offered, and there is no acknowledgement that a number of countries permit polygamy—Syria, Yemen, Iraq . . .
Their list of civilizational models goes on, but why follow this descent into the unserious? No evidence needed to be offered by Wisconsin. As Posner’s book peacefully accepted, common sense establishes (and his socio-biology confirms) that biological, genetic kinship is the soundest basis for the altruism indispensable for optimal parenting, even before we consider the profound interest that each child has in being loved by those two (the two) who are “my mother and father” in reality, not in name or legal fiction. It is equally commonsensical to acknowledge the profound interest the mother has in being the equal of the father (not a competitor with other mothers for his attentions and resources) in responsibility for that child.
Will Same-Sex Marriage Help Abandoned Children?
Time to look at the proposal with which Posner proudly begins and ends his opinion: his remedy for the states’ abandoned-children problem. Indiana’s failure to envisage this remedy is, Posner suggests, proof of the state’s animus against homosexuals. Gay marriage, Posner holds, will incentivize same-sex couples to adopt abandoned children; indeed, same-sex couples (though not married) are already adopting abandoned children, who “would be better off emotionally and economically if their adoptive parents were married.”
Posner says: the major phenomenon of unwanted children from accidental pregnancies “is doubtless the reason homosexuals are permitted to adopt in most states—including Indiana and Wisconsin.” The phenomenon is indeed vast. But Wisconsin, though it does not treat a homosexual lifestyle as an absolute bar to adoption by a single person, regards such a lifestyle as so inferior as a kind of environment for children that it forbids adoption by a same-sex (or any other unmarried) couple. That was Indiana’s position until 2006, when its own Court of Appeals misinterpreted a 2005 statute designed to preserve the Wisconsin-type law against earlier questionable Indiana court decisions, and so reduced the state, against its government’s will, to accepting same-sex-couple adoptions.
But pretend for a moment that Posner’s history is sound and his proposal a genuine means of securing the adoption of more children by same-sex couples, and some improvement in the emotional well-being of adopted children who hitherto have been looked down upon for having unmarried parents. How big are these gains, and at what cost would they come?
The new-wave adoptions by incentivized, married-up same-sex couples will remain a tiny fraction of the vast mass of children abandoned to their mothers or to foster care, leaving over 95 percent—perhaps 98 percent—of that mass to conjugally married couples or to genuinely single people. The judgment buries scale under its strictly true but misleading and, in the end, irrelevant statement that “same-sex couples are more likely to adopt foster children than opposite-sex couples are.” For, of course, the former are far less likely to have children of their own—and indeed far less likely to have in their household any children at all, including adopted ones. Three US children in a thousand (0.3 percent) live with a same-sex couple.
And the cost will be great. The incentivizing by respectability (primary among marriage’s benefits-incentives as envisaged in the Posner opinion) will also incentivize considerable numbers of married women to leave the fathers of their children in order to live with a woman. As Posner well knows, lesbians make up over half the people engaging in homosexual relationships in the US today, even though “real lesbianism” (to use Posner’s terminology in Sex and Reason) is much less frequent among women than “real homosexuality” among men. “Opportunistic lesbianism” (again, his term) is thus a massive and growing phenomenon, and it mostly involves women coming out of marriages or other cohabitations with men, bringing a child or, usually, two or more children with them. Conferring the marriage cachet on the households constituted from such flights from heterosexual life will unquestionably transfer large numbers of children from fathered to fatherless households. This cost is utterly overlooked by the judgment.
The Most Sinister Result: Engineering, Buying, and Selling Children
But Posner’s adoption-focused proposal involves an even greater cost. Of all the opinion’s many failings, perhaps the worst and most direct is its refusal to notice the most sinister result of same-sex legal marriage: the creation of countless children precisely for same-sex couples.
No need for the hassle of seeking approval for adoption. We’re married! Let’s rent the womb of a woman in Sri Lanka to have our baby (well, sort of ours, but anyway for us from conception, not adopted from some other couple’s purposes and after their love-making and their birthing.)
The implications of this massive stimulus to artificial baby-production by surrogacy are profound. It may eliminate the supposed Posnerian surge in same-sex adoptions, perhaps even reducing today’s unimpressive rate. It will lead to the exploitation of poor women by rich men, more opportunities for child abuse, and the breakdown of incest norms. Newly increased numbers of children will be subject to the indignity of being conceived in order to be motherless (or fatherless), as products for the purposes and monetary benefit of his or her parents. This is a wound and, for not a few, a lifelong misery, scarcely compensable by the quasi-parents’ love and nurture. These will be children produced with the express intention of depriving them of either their mother or their father.
Indiana’s brief alluded in passing to surrogacy with altogether regrettable complacency. The complacency goes further, of course. Indiana should long ago have banned all such surrogacy, a reform imperatively demanded by justice and one that, tragically, will be blocked permanently if same-sex marriage is imposed by the federal judiciary.
Rooting out “Discrimination” and Erasing All Distinctions
Any rational legislature could regard the Posner adoption plan as a complete bust. By failing even to try to sketch the barest outlines of a rational deliberation about all this, the Posner opinion flunks the lowest bar of competence in constitutional adjudication. The judgment’s most central claim—that the states’ refusal to redefine marriage is groundless—is false and irrational.
And the damage that any constitutionalized imposition of same-sex “marriage” must do to real marriages and to most or all people, is vastly greater than anything mentioned by Indiana’s lawyers. For what, we should ask, will be the only way to alleviate the child’s pain that Posner places at his opinion’s heart—about being out of place for having two moms (or dads), pain that Posner pretends will be alleviated by calling those moms married? The answer that will be given will be the answer that drives Posner’s opinion: root out discrimination.
The equality that demands same-sex marriage demands just as imperiously that all social recognition of the distinction between mothers and fathers—of the paternal and the maternal, the masculine and the feminine, and of the sexual identity of everyone as male or female—must be systematically expunged from our schools and social life, to be replaced by the lies and seductions of “gender identities” on the ever more blurry rainbow spectrum. The resultant miseries and losses will reach into every family, and wound Indiana and Wisconsin to the very heart of their people.
This judgment constitutes a profound injustice, recklessly imposed and locked in.
John Finnis is Professor of Law and Legal Philosophy Emeritus in the University of Oxford and the Biolchini Family Professor of Law at the University of Notre Dame.