The Seventh Circuit moved mighty quickly when it ruled in the same-sex marriages cases last month. A lightning speed eight days after oral argument, the unanimous three-judge panel handed down its ruling in Wolf v. Walker (Wisconsin) and Baskin v. Bogan (Indiana). Conventional wisdom has it that Judge Posner wrote the opinion in advance. Numerous commentators lauded Posner's "evolution" on same-sex marriage. When the Supreme Court denied cert in these two cases earlier this month, it left every bit of the opinion standing.
I have been shocked by the virtual silence among marriage equality supporters concerning some of the nefarious reasoning in Posner's opinion. Now I will admit that Posner goes to lengths to expose the faulty reasoning behind the defense of same-sex marriage bans that opponents proffer nowadays. The argument goes something like this: Limiting marriages to couples who look like they could procreate (or in the case of the elderly, set good examples for younger couples by looking like what those couples will one day look like) encourages marriage for those who procreate accidentally, and those are the couples who need the benefits of marriage to entice them into this most desirable family form. (Yes, I am being tongue-in-cheek here). Allowing couples to marry who clearly cannot procreate accidentally makes it seem as though there is no connection between marriage and procreation, and this will foster an environment in which fewer heterosexual couples will marry for the sake of the children they might produce. The state is trying to reduce accidental births outside of marriage, and since same-sex couples can't have such accidental births, there is no need to give them the state conferred benefits of marriage.
There is so much wrong with the reasoning above, and I did get a smile out of Posner's sarcastic response to the state rewarding heterosexual couples who behave badly (irresponsibly creating children) while punishing same-sex couples whose relationships do not result in irresponsible procreation. "Go figure." That's how he put it. And had he stopped there all would have been well. (I did also like that he pointed out that the rate of nonmarital births had increased, not decreased, since Indiana enacted its ban on same-sex marriage. It does show how preposterous is the cause and effect nature of the claim made by opponents of marriage equality).
But he didn't. Here is what he said: Accidental pregnancies produce unwanted children; unwanted children are placed for adoption, and if not adopted wind up in foster care; unwanted children are a major problem for society. Already I knew I wasn't going to like this. Accidental pregnancies produce some children who are placed for adoption and many who are not. "Unwanted" is a loaded term that hides the lived reality of why some women decide to place children for adoption, including the lack of social and financial support for mothers and the stigmatized nature of the paltry sums the state provides poor mothers. Plus, accidental pregnancy does not equate automatically with unwanted children. (At oral argument, Posner asked the lawyer for Indiana if it wasn't true that children of accidental pregnancies are placed for adoption. He said it as though that was the norm. It isn't. I didn't like where he was going, and the opinion was even worse than I imagined.) Plus, healthy children who are placed for adoption at birth are adopted. They don't wind up in long-term foster care because there is no shortage of parents who want to adopt them. Some children do wind up in foster care for a long time and are not adopted. But anyone tackling that problem should be looking first at the lack of support for the families of those children -- well-paying jobs with family-friendly leave policies, educational opportunity, affordable housing, substance abuse treatment. And they should start by reading Dorothy Roberts's brilliant book, Shattered Bonds, to understand the role racism plays in our foster care crisis. Believe me, that was the farthest thing from Posner's mind....
After positing unmarried mothers as creating the problem, Posner's solution turned dark, and I wish it had outraged more LGBT rights commentators (or any). Here is how he put it: 'Accidental pregnancies are the major source of unwanted children, and unwanted children are a major problem for society, which is doubtless the reason homosexuals are permitted to adopt in most states—including Indiana and Wisconsin."
So single mothers create the problem,....and same-sex couples are the solution! It got worse. Quoting data from Gary Gates of the Williams Institute, the best source of data in the country on all things LGBT, Posner wrote that same-sex couples (well, Posner said homosexual, but I won't go there...) were five times as likely as heterosexual couples to be raising an adopted child in Indiana and, throughout the country, were more likely to adopt children from foster care. So, tying all this back to the issue at hand -- denial of access to marriage for same-sex couples, Posner concluded, "Married homosexuals are more likely to want to adopt than unmarried ones if only because of the many state and federal benefits to which married people are entitled. And so same-sex marriage improves the prospects of unintended children by increasing the number and resources of prospective adopters."
If I were to propose improved prospects for "unintended children," it would be with implementing policies that value all children, and the families they come from. There is much more in Posner's opinion that shows his contempt for women who bear children without marrying and his strong preference for marriage over nonmarital relationships (admittedly, and sadly, some LGBT supporters share this view). And he even indicated that fewer pregnant women will have abortions if they know that married same-sex couples are able to adopt their children. (I did not make this up.)
Should we care about the reasoning Posner used to reach his decision? Many would say no, that ending the marriage ban is all that matters. But this reasoning goes to who we are and whose causes we link to our own. I have written repeatedly about how much I detest the distancing of same-sex couples from single mothers, the repeated assertions that our children will grow up better than theirs. Posner's reasoning belongs in that category. Even for those who appreciate the outcome in this case, I wish everyone called the reasoning what it is -- misogynist, racist, divisive, and disrespectful (for starters). And with no review by the US Supreme Court, it stands forever as the final word in the 7th Circuit.