Richard Posner’s Gay Marriage Ruling Shows Why We’re Losing

David Benkof Contributor
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Nothing annoys a liberal more than a smart conservative. But nothing annoys a smart conservative more than a dumb conservative.

Thursday’s ruling by whip-smart Judge Richard Posner striking down the Indiana and Wisconsin gay-marriage bans was a massive loss for traditionalists. The Chicago Tribune declared that the decision dismantled my side’s arguments.

The Tribune is right – Reagan appointee Posner destroyed the arguments presented to him. But those arguments were inexcusably weak. Many of the judge’s points could have been easily refuted, and persuasive lines of reasoning were never brought up. The first-line defenders of a key societal institution were unmasked as rank amateurs.

And it’s not the first time. The incompetent legal team defending California’s Proposition 8 called no credible witnesses. The decision was a bloodbath. And the lawyers defending Michigan’s ban relied on a widely discredited parenting study and ignored the clear bias of the plaintiffs’ witnesses and their research – most of which was bought and paid for by the gay community.

During oral arguments and within Posner’s ruling, the judge was deliberate and incisive. He was also frequently wrong.

But Posner correctly said the basic argument presented to him was “so full of holes that it cannot be taken seriously.”

Three of Posner’s most significant challenges could each have been handled by a simple two-sentence reply. Instead, the inept lawyers defending the marriage bans frequently mumbled, repeated themselves, and appeared flummoxed by softball questions.

As for Posner’s first piece-of-cake argument, nearly one-tenth of his decision was devoted to asking why states obsessed with procreation don’t demand fertility for potential brides and grooms. Indiana’s lawyer seemed to have no idea why sterile couples, but not gay ones, should legally marry. Here’s what he should have said: “Sterile couples can always find themselves raising children, such as if the daughter of a sibling or close friend is suddenly orphaned and they need to step in and raise her. In such cases, the male-female couple is still in the best format for nurturing children.”

Now, one might disagree that male-female couples are superior parents, but that 46-word response still invalidates Posner’s 1,000 word argument.

The second major easy-to-refute argument refers to interracial marriage and the Loving v. Virginia case, which overturned bans on so-called miscegenation. Supporters of gay marriage frequently, and triumphantly, use racial analogies. Opponents rarely know how to respond. They simply cannot differentiate between the immorality of interracial marriage bans and the propriety, even necessity, of same-sex ones.

Wisconsin’s lawyer, nonsensically, said the difference from Loving was deviation from common law. But in two sentences of nine words each, he could have said: “Blacks and whites are the same and completely interchangeable. Men and women; and mothers and fathers, are not.”

Even those who do think men and women are interchangeable would not have laughed that argument out of court.

The final challenge – adoption – could also have been handled in a cinch. Posner emphasized that children of unmarried gay parents don’t have access to federal marriage benefits – and suffer from hurt feelings and shame. But those problems apply even more acutely to the children of single parents; and, rightly, nobody proposes government policies that treat those families equally.

Posner asked Indiana’s lawyer, “You allow the homosexual couples to adopt; why don’t you want their children to have the same advantages?”

Again, two sentences could have invalidated that argument and shown Posner’s challenge to be dirty pool: “Same-sex adoption serves the common good, but same-sex marriage greatly undermines it. If Indiana knew enacting the first policy would require the second, there would be no same-sex adoption in this state.”

The most forceful objection Posner made to marriage bans demands a more thorough response. The judge repeatedly asked whom gay marriage harms.

Wisconsin’s lawyer’s response was, “I think society is, marriage is an institution … Frankly, at this point, we don’t know if there is a harm.” When asked to just describe theoretical harms, he twice referred to the damages wrought by no-fault divorce (which Wisconsin, um, has) as “the only example.” Same-sex marriage, he said, could similarly devalue marriage and cause people to avoid it.


Same-sex marriage does harm real people. Here are three examples:

1) Marriage laws should buttress the best family format for nurturing a child into a well-adjusted adult: one with both a mother and a father.

Gay-marriage advocates like to trumpet studies demonstrating the supposed equality of gay and straight parenting. But those studies, with very few exceptions, were carried out or paid for by LGBT people themselves – with zero disclosure of potential bias. Certainly, an individual LGBT or gay-funded researcher can do a valid gay-related study, particularly with full disclosure. But hundreds of such studies with only a handful of exceptions? That’s hardly credible.

By ceasing to privilege male-female families — and especially by requiring adoption agencies and other organizations to make no differentiation between types of parental arrangements that actually are different, same-sex marriage hurts kids who should have a Mom and a Dad whenever possible.

2) LGBT people, for the most part, do not believe fidelity is an essential part of a proper marriage (just ask them) — and adding an entire class of people who don’t agree with a basic premise of marriage will inevitably change marriage — and not for the better. For example, prominent gay activist and anti-monogamy relationship columnist Dan Savage was featured two years ago in a 5,000-word cover story in The New York Times Magazine. The article described Savage’s position: “A more flexible attitude within marriage (regarding sexual exclusivity) may be just what the straight community needs.”

An at least theoretical respect for sexual exclusivity helps define what marriage is. People like Savage may want to add many people to the institution with a different vision of sexuality within marriage, but that means the nature of the institution will change for everybody. And infidelity carries clear risks, from spreading disease to reducing the stability children need.

There: a second well-defined harm of gay marriage.

3) Less significant, but easy to demonstrate, is the harm gay marriage causes to traditionally religious people. As gay marriage has spread, people with moral objections to contributing to a ritual they abhor have been fined, shut down, and even corralled into re-education classes. Of course, many gay-rights advocates think such vendors must be punished anyway for their “offensive” beliefs. But the fact they’re being harmed is undeniable.

American society has been debating gay marriage for well over a decade. The states’ lawyers could have identified specific harms with a few quick Google searches. They could even have found them during a bathroom break on their cell phones! Yet their best arguments were procreation and no-fault divorce?


In court, the harms listed above may not have convinced Posner that the downsides of gay marriage outweigh its benefits. But I’ve made actual arguments, aimed directly at the judge’s points. I resent my side’s ineptitude, which only bolsters the perception that no real case against gay marriage exists.

Posner repeatedly demolished silly arguments such as gay marriage discouraging “responsible procreation by heterosexuals”; the whiny idea that courts should never overturn decisions of the people; and the insufficient fact that male-female marriage is “tradition.” His success demonstrates the wasted energy on unpersuasive talking points that could only have come from ill-prepared and empty-headed advocates.

Beyond this case, prominent traditional-marriage defenders sometimes make arguments so tone-deaf that they should just stop talking. Heritage Foundation fellow Ryan T. Anderson, a purported wunderkind for his supposed brilliant rhetoric that is said to defeat gay-marriage advocates, was asked at a Stanford event why gay couples shouldn’t be allowed to file taxes jointly.

His immediate response was “What if we were to say ‘Why should I not be able to file a joint tax return just because I’m in a throuple?’”

And former Republican Sen. Rick Santorum told an Associated Press reporter that marriage doesn’t just exclude gays; it also excludes “man on child, man on dog, or whatever the case may be.”

It’s not quite “legitimate rape” – but it’s not so far off, either. When you start talking about throuples and “man on dog,” you’ve already lost the debate.

Traditionalists need a short list of smart, well-honed arguments, instead of our current vague, easily refutable ones. Doubtless, my above attacks on marriage traditionalists will not endear me to them. But they would be wise to nonetheless read my essays carefully.

I hate to say it, but given my side’s disastrous arguments, Posner was probably right to strike down the gay marriage bans. As someone who, since 2003, has published more than 25 essays vigorously opposing same-sex marriage, I think something has gone terribly wrong.

David Benkof is a freelance writer living in St. Louis. He is a frequent contributor to the Daily Caller. Follow him on Facebook or E-mail him at DavidBenkof@gmail.com.