Let us take a moment to celebrate my dear Judge Posner’s decision in favor of same sex marriage, Baskin v. Bogan __ F.3d __ (7th Cir. Sep. 4, 2014) and offer some favorite paragraphs from one of our greatest thinkers (ok, I’ll admit, I am a fan):
The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.
Some pretty language for future quotes:
If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a harmless anachronism; it is a violation of the equal protection clause, as in Loving. See 388 U.S. at 8–12.
Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.
[M]ore than unsupported conjecture that same-sex marriage will harm heterosexual marriage or children or any other valid and important interest of a state is necessary to justify discrimination on the basis of sexual orientation.