Gay Marriage -The Moment at Hand - Linda Greenhouse - NYTimes.com

William Eskridge was the first legal scholar
to propose same sex marriage

Times have changed.  Linda Greenhouse recounts how Judge Richard Posner's views on gay marriage have evolved from "it's OK for states to experiment" to "it's not OK for states to bar gay marriage".  Many of us have undergone similar evolution.  I remember the first time I wrote about the issue.  I supported Goodridge v. Massachusetts drafted an editorial relying on Justice Louis Brandeis's lauding state experimentation in the New State Ice case.
A few years later I supported New Jersey Justice Barry Albin's majority view (4-3) that the state had to provide absolute equality for same-sex couples but the voters should decide whether it had to be called marriage.  The Legislature responded setting up a study commission which concluded that only marriage could be equal to marriage.  The legislators passed a bill allowing gay marriage which Governor Chris Christie vetoed.  A lower court mandated marriage be permitted and Christie opted not to appeal.
Now the U.S. Supreme Court has to decide if the logic of permitting same-sex marriage is enough to overcome their conservative (and Catholic) impulse to defer to the sentiments of voters in the states which have not yet come to that conclusion.  - gwc
The Moment at Hand - NYTimes.com
by Linda Greenhouse

When it comes to gay rights, it’s not as if we need proof of how things have changed in the past 20 years. But anyone looking for proof might put two documents side by side. Both are by the same author, the always interesting, often provocative federal appeals court judge, Richard A. Posner. One, from the mid-1990s, is a review of a book advocating legal acceptance of same-sex marriage by William N. Eskridge Jr., then a law professor at Georgetown University, now at Yale.

The argument in the book, “The Case for Same-Sex Marriage,” was “a powerful one,” Judge Posner wrote, “and it would not trouble me if a state were persuaded by it and adopted such a law.” But a judicial declaration to a right to same-sex marriage, he continued, “would be an unprecedented example of judicial immodesty.” The public would view such a decision as the imposition of “a radical social policy that is deeply offensive to the vast majority,” Judge Posner went on, adding that “judges must accord considerable respect to the deeply held views of the democratic majority.”

The second document is from two weeks ago. Writing for a unanimous three-judge panel of the United States Court of Appeals for the Seventh Circuit, Judge Posner held that the refusal by Indiana and Wisconsin to recognize same-sex marriages violated the 14th Amendment guarantee of equal protection.

In a 40-page opinion in Baskin v. Bogan, issued nine days after the argument, Judge Posner said the states had failed to offer even “plausible” justifications for their prohibitions. He shredded the states’ arguments in pithy, sometimes hilarious terms. To the states’ “argument from tradition,” he observed that traditions are not invariably or reliably good. They can sometimes be bad (“cannibalism, foot-binding, and suttee”) or sometimes neither good nor bad (“trick-or-treating on Halloween.”) “Tradition per se therefore cannot be a lawful ground for discrimination.”

And to the argument that courts should defer to the democratic process (Indiana’s ban was by statute, and Wisconsin’s by constitutional referendum), Judge Posner had this to say: “Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.”
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