Judge Posner dismisses Wisconsin and Indian gay marriage bans

The decision of District Judge Martin Feldman in Robicheaux v. Caldwell upholding Louisiana's bar on same-sex marriage heartened conservatives (e.g. Justice Scalia acolyte Kevin Walsh in the conservative Catholic blog Mirror of Justice).  Feldman sees the issue as a choice between "democratic processes"and "sincere lifestyle choices".  He opts for democratic process, finding a rational basis for the discrimination because "Louisiana's laws and Constitution are directly related to achieving marriage's historically preeminent purpose of linking children to their biological parents."

But this week, in Baskin v. Bogan, only nine days after oral argument, the 7th Circuit struck Wisconsin and Indiana's bans in a scathing opinion by Judge Richard Posner, saying

Formally these cases are about discrimination against the small homosexual minority in the United States. But at a deeper level, as we shall see, they are about the welfare of American children. The argument that the states press hardest in defense of their prohibition of same-sex marriage is that the only reason government encourages marriage is to induce heterosexuals to marry so that there will be fewer “accidental births,” which when they occur outside of marriage often lead to abandonment of the child to the mother (unaided by the father) or to foster care. Overlooked by this argument is that many of those abandoned children are adopted by homosexual couples, and those children would be better off both emotionally and economically if their adoptive parents were married.

It won't be long before the United States Supreme Court has to resolve the splits among the lower courts.  Conservatives will stack history and state sovereignty against the rising tide of opinion that accepts homosexuality and same-sex relationships as unobjectionable, or a positive good.  - GWC