Posner on same-sex marriage

That Judge Posner has changed his mind on the same-sex marriage question is only slightly less dramatic than if the Pope decided that the Church had been too tough on Satan. Less bombastically, Posner’s change of position was a sea change in the judge’s thinking.  Professor Ronald K.L. Collins details this about-face in Posner on Same-Sex Marriage: Then and Now. It is captivating reading.

As I concluded Professor Collin’s piece, I thought of Mr. Justice Holmes. Some may remember that he too changed his views dramatically on the value of free speech in his Abrams’ dissent. See Thomas Healy, The Justice Who Changed His Mind: Oliver Wendell Holmes, Jr., and the Story Behind Abrams v. United States, 39 J. Sup. Ct. History (March 2014)  (download free at the Social Science Research Network) (Abstract: “It is one of the great legal and intellectual mysteries of the twentieth century: Why did Oliver Wendell Holmes change his mind about the value of free speech in the turbulent months following World War I and write his landmark dissent in Abrams v. United States? In this Article, I provide the most comprehensive answer yet to this question. Relying upon extensive archival research – including a number of previously unpublished letters – I argue that Holmes’s dramatic transformation was the result of two related, but distinct developments. First, during 1918 and 1919, Holmes was the target of an intense behind-the-scenes lobbying effort carried out by a group of young progressives that included Harold Laski, Felix Frankfurter, Learned Hand, and the editors of the New Republic. Holmes cared deeply for these young men, viewing some of them like sons, and was thus surprisingly susceptible to their influence. Second, at the same time these men were lobbying Holmes to adopt a more expansive view of free speech, two of them – Laski and Frankfurter – came under attack for their own radical views. Holmes learned about their difficulties in the spring of 1919 and wrote several letters on their behalf. Then, when trouble flared up again that fall, Laski and Frankfurter asked Holmes if he would write an article on tolerance for the Atlantic Monthly. Holmes declined, citing his heavy workload, but several days later he wrote his dissent in Abrams “as if possessed,” he explained to Frankfurter. Thus, I argue, Holmes’s dissent can be seen as more than just an abstract defense of free speech. From the perspective of his young friends, it was a defense of them.”).

It is well-known that Posner holds Holmes in high regard. See, e.g., Richard A. Posner, The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr., (Paperback – January 1, 1997). Consequently, we should not be surprised then that Posner emulates the great man in the flexibility of the mind. Indeed, Professor Collins provides us important insights into the ability of Posner to see the world differently as time marches on without the slightest concern about the bugaboo of “inconsistency.”

I urge you to read Collins’ piece. As you do, remember Emerson’s dictum: “A foolish consistency is the hobgoblin of little minds.”


23 responses

  1. Judge What I find interesting in the material on Holmes was that he came to realize the importance of free speech in part through his empathy for potential victims of the first red scare. Similarly Prof. West speaks of Posner’s lack of empathy on gay marriage, a lack clearly faded by the time of the two cases. In each the case of each judge the ability to understand the situation of the type of folks before the bench plays a part in decision. Maybe the death of implied assumption of risk was advanced by judges knowing people who tried to walk on ice and fell.

  2. To my simple mind, the base issue is don’t the people of a state (like Nebraska) have a fundamental right to pass a law or amend their state constitution and limit marriage to one man and one woman; the way society has been ordered well before the Republic was founded?

    Isn’t that rational?

    Merry Christmas to all.

  3. Anony.,

    The fascinating point to me is that the definition of “rational” as is used in legal context changed radically in less than a generation. That’s light speed for lawyers and judges. All the best.


  4. In your view of rationality, I take it that you believe that anti-miscegenation laws are constitutional. Or that the state could pass a law holding that the primary purpose of marriage is procreation, and thus couples that cannot procreate may not marry.

    I doubt very much that you would agree with those ideas. Perhaps you should consider thinking again what is rational in this context.

  5. For years, I kept a typed excerpt from Holmes’ dissent in Abrams in my wallet, and every so often I would take it out and look at it as a reminder of what the law can be like (even though Holmes did not prevail in that case).

  6. At the time of the Constitution there was no divorce to speak of but only what use to be called separate maintenance, though true divorce could be sought from Parliament as in the Queen’s Case. As divorce became more common and the grounds easier the essence of the law of marriage was changed from reproduction to companionship and it is at that point the irrationality occurred The people of NE were not rationale, they were kidding themselves and refusing to face reality.

  7. Judge simply stated is not for retired profs, I will stand on my pompous approach, or perhaps the life of law has been sympathetic sharing of the experience of others.

  8. I should add that once people have a constitutional right to childless marriages under Griswald the unreality becomes more apparent. In NE the old history of divorce a vincula by legislation is remembered by being forbidden in the local or special laws clause.

  9. I think this discussion (and some of the comments) goes well with your December 20th post about sentencing the sick person. In the end I think the law requires a healthy mix of logic and reason but also empathy and experience. I know you have, on multiple occasions, said you don’t really believe in empathy in the courtroom is overrated but I think you’ve also shown it at times ;).

    I’ve always felt that to truly learn I need to understand “why” something is done and not just “how” (and same when I’m teaching others). That isn’t always possible for many reasons but there are always the little oddities that pop up and will throw you for a loop if you just know a rote “A = B” answer while “understanding” gives you the ability to adapt. The law has a tendency to tend towards A = B answers, not always for bad reasons, but I think the best judges (and the best attorneys, and the best prosecutors etc…) know when to split off because the differences call for something a bit different be it harsher or lenient or just plain “different”.

    In the end we should encourage our judges, and our law makers (especially our law makers…) and everyone else involved in the process to experience life as well to broaden their understanding of WHY something is done (and, likely, sometimes realizing that the ‘what’ or ‘why’ is wrong) to better understand what should be done. I’d actually say that the vast majority of the common law was created this way as well, choices were made for a reason (whether we understand it or not) based on the realities and experiences of the time.

  10. Dear James,

    I agree that the “why” is critical. It is also very often the most difficult question to answer. Incidentally, judges have a lot of tools that allow them to avoid answering that question. Whether they should use those tools is a different question.

    All the best.


  11. The romance with war and the brotherhood of combat in Holmes tends to count against calling him a non romantic, much of the unromantic language seems to be reaction to the Doctor and to his stoic opposition to emotionalism particularly his dislike of the Doctor’s article on his search for the captain. Given the state of military medicine in the Civil Was, Justice was probably lucky that his father was one of the first American mds to accept germ theory and hand washing.

  12. Lucky that his father accepted germ theory, or that the doctor(s) who treated him on the battlefield accepted it? (They probably didn’t–he was just plain lucky. And, thus, so were we.)

    I assume you know the story that when Jeb Stuart made a raid on Washington in 1864, Lincoln went out to the battlements to see what was going on, that Holmes, seeing a civilian exposing himself, shouted “Get down, you fool!” only to realize that he had yelled at the President. I think that story has been debunked, but it’s still a good one. (And presidents did not have the same majestic place in society that we give them today.)

    By the way, and entirely off topic, Merry Christmas and Happy New Year.

  13. I have several thoughts on this issue. (1) I think the notion that Holmes wanted to protect his young friends is overplayed. It is better to see the concern for his young friends as going to the motivation for changing his views and having less of an impact on what those views were. After all, Holmes and Hand disagreed strongly on what the legal test for free speech should be. (2) This leads me to a second point. That the comparison between Holmes and Posner in this regard is misplaced. Same sex marriage is a specific public policy whereas freedom of speech is a foundation for policy. It is comparing whether or not to cut down a specific tree to whether or not to cut down an entire forest. So I’m not persuaded that Holmes behavior is a useful precedent here.

    I have no doubt in my mind that Holmes would have opposed judicial intervention in the SSM issue. While the life of the law may have been experience, or as we would say today culture, Holmes also believed strongly in judicial restraint. Holmes made his comment about experience in the context of the common law–he possessed a much more restrained view of the life of Constitutional law.

  14. Holmes’s father trained in Germany and was an early exponent of the German theory. He was an early user of the microscope, and came out of retirement to teach its use as Harv Med since the faculty did not know how to use them. Legend is the students stoled them before he returned.Best wishes for the holidays.

  15. Kenneth You are probably right about judicial restrain, certainly Frankfurter saw Holmes as a model. However at the moment that tradition is dead, despite the Judge’s trying to reawaken interest in Bickel. The various schools of originalists or textualists have no place for the doctrine and it plays only a limited role in the various schools of constitutional development who see SSM as involving a stigma on an isolated minority or an example of a broader right to relational autonomy. On the other hand the Holmes Posner comparison is an analogy rather than an equivalence, and as analogy seems to me to be valid. Certainly the realists.would not have banished talk of experience to its first context.

  16. RL,

    When I was first taught about Holmes Jr.,, the great skeptic, I was required to learn about his father, who was a great man too. Thanks for the important reminder.

    All the best.


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