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Thursday, September 04, 2014

In a Different Voice

Just a quick, basically neutral observation about the language of Judge Posner's opinion in Baskin v. Bogan: Unlike the language of many of the SSM opinions so far, it is virtually stripped of the kinds of terms and effects that crop up elsewhere. The word "dignity" appears exactly once, on page 38 of a 40-page opinion. At that, it appears in a quotation of another court, and only in passing. Similarly, the word "animus" appears just once, at page 27. Brown v. Board of Education, cited in at least three of the SSM cases so far, is absent; so is "segregation." If the opinion is forceful and effective, it nevertheless speaks in a different register than the one that many other judges writing in this area in the past few months have strained at achieving.    

Posted by Paul Horwitz on September 4, 2014 at 05:08 PM in Paul Horwitz | Permalink


My question for Judge Posner:
How can Justice be served by a Judge, who, when voicing an opinion about the essence of existing in relationship as husband and wife, makes the erroneous claim that in order to be married to one another, it is no longer necessary to exist in relationship as husband and wife, thus condoning marriage fraud. Certainly, such an erroneous opinion, which claims that condoning marriage and condoning marriage fraud, simultaneously, is not a contradiction in term, or in essence, would result in an error in both substantive and procedural due process.

Posted by: N.D. | Sep 8, 2014 12:34:13 PM

"And there is little doubt that sexual orientation, the ground of the discrimination, is an immutable (and probably an innate, in the sense of in-born) characteristic rather than a choice. Wisely, neither Indiana nor Wisconsin argues otherwise."- Baskin v. Bogan

This is not a statement of fact as there is no scientific evidence that a same-sex sexual attraction is immutable.


Posted by: N.D. | Sep 7, 2014 3:06:39 PM

With all due respect, one cannot be a Christian and deny that The Word of God Is The Word of God. The Word of God Is not a matter of opinion.

Posted by: N.D. | Sep 7, 2014 11:38:10 AM

There is an order to Love, which is why a man does not Love his wife in the same manner as he Loves his daughter, or his son, or his mother, or his father, or a friend. How do same-sex sexual acts respect the inherent personal and relational Dignity of the human person, who is not, in essence, an object of sexual desire/orientation, but a son, daughter, brother, sister, husband, wife, father, mother?

Posted by: N.D. | Sep 7, 2014 11:12:41 AM

Same sex relationships retain dignity* for each person and a range of people believe the one can be a Christian and still retain this view. One might disagree, as the First and Fourteenth Amendments protects, just as people can divorce, even though Jesus by the gospels opposed that in most instances.

* As to Posner, as a lower court judge, he is restrained by Supreme Court precedent that holds this to be true, even if he personally disagrees, even if the USSC is wrong on the point.

Posted by: Joe | Sep 6, 2014 12:34:45 PM

With all due respect, if the opinion appears to be forceful and effective, it is due to the fact that it fails to recognize that there are no minorities, when we begin with the self-evident truth, that every human person, from the moment of conception, is a son or daughter. To rule that in order to be married, it is no longer necessary to exist in relationship as husband and wife, is to condone marriage fraud.

Posted by: N.D. | Sep 5, 2014 4:21:13 PM

True, Judge Posner does not try to hide the fact that in essence, he believes that any Christian or non Christian, who is affirming The Word of God, is a bigot for not condoning same-sex sexual acts or any type of sexual act that does not respect the inherent personal and relational Dignity of the human person. The question is, how can anyone be a bigot for desiring that all persons be treated with Dignity and respect in private as well as in public, and refusing to condone any act, including any sexual act that is not respectful of our Dignity as a son or daughter, brother, or sister, husband or wife, father or mother?

Posted by: N.D. | Sep 5, 2014 2:46:25 PM

Posner, perhaps uniquely among lower-court judges, feels unconstrained from the typical way of writing an opinion, which is both to appeal to Justice Kennedy by citing him as much as people and to follow the typical form of judicial opinions--there are no section breaks (it's one long essay), few string cites (or citations of any kind), etc.

It's also telling that Posner recasts the constitutional scrutiny analysis into a cost-benefit analysis, while insisting they get to the same place.

Posted by: Howard Wasserman | Sep 5, 2014 8:25:08 AM

So, it showed how the protect the children rationale against SSM is bogus w/o "a pageant of empathy ... impelled by a response of innate pathos" to quote the one federal judge in the recent stream of cases that wrote an opinion for the court against SSM?

Anyway, I agree with Mr. Risch.

Posted by: Joe | Sep 4, 2014 7:51:31 PM

I thought it was powerful in its precision. I also think that a diversity of rationales all leading to the same conclusion is a good thing.

Posted by: Michael Risch | Sep 4, 2014 5:51:24 PM

Posner is Posner. Others may be trying to channel Kennedy (from Romer, Lawrence, Windsor).

Posted by: Joe Miller | Sep 4, 2014 5:33:36 PM

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