Let’s face it, I don’t belong in the same sentence as Judge Richard Posner. I regard Posner as a giant. I respect him and wish he sat on the Supreme Court. He is known for speaking the raw truth, and I highly respect him for that trait. But he is wrong as hell to write in Slate* that the Chief Justice’s dissent in the gay marriage case was heartless and furthered the cause of bigotry. It is a damnable lie.
The Chief Justice ends his dissent in the gay marriage case with these words:
If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.
Obergefell v. Hodges, 576 U. S. ____ (2015), slip op. at p. 29 of dissent.
Those are not the words of a cold and heartless and bigoted man. Indeed, if anything the dissent reflects a sadness that the Chief Justice cannot join the majority.**
Paul Barrett said it best when trying to understand the Chief Justice and his views in the Obamacare and gay marriage cases:
On Thursday, Chief Justice John Roberts drew fierce conservative fire for upholding Obamacare (again). A hero to political liberals for 24 hours, Roberts seemingly flipped positions on Friday to write the lead dissent opposing the nationwide legalization of gay marriage. What’s with this guy?
Actually, his opinions in the marquee cases of the 2014-2015 Supreme Court term aren’t difficult to reconcile. Agree or disagree with Roberts on the merits, one can easily discern an essentially restrained jurist concerned with promoting the machinery of democracy and the reputation of the highest court in the land.
Paul Barrett, Why John Roberts Upheld Obamacare but Dissented on Gay Marriage
He sides with liberals one day, conservatives the next. What gives?, Bloomberg Business (June 26, 2015).
No heartlessness. No bigotry. Instead, as Barrett stresses, “Roberts was notably gracious toward the gay couples who challenged state same-sex marriage bans.”
Posner’s assertion that Chief Robert’s dissent reflects a cold heart plus bigotry is a vicious lie–and Posner knows it. Why he lied in the Slate article is a mystery.
*H/T How Appealing.
**I continue to be enraged by Judge Sutton’s decision. He unnecessarily forced the Supreme Court to take this case. In doing so, Sutton harmed the Court as an institution. He should have cared more about the legitimacy of the Supreme Court than he cared about his idiosyncratic beliefs that were shared by no one else in the other Circuits.