Posner, Gay Marriage, and Legal Reasoning
As some of you may know, I've been having several discussions on gay marriage and the interpretations of arguments in another place.
I mean to post this a week ago, after it appeared on Crescat Sententia, but since I have a spare moment, I'll do it now. Richard Posner has published one of the more well-reasoned critiques of an argument for gay marriage that you're likely to come across. Like Crescat, I'll quote the most interesting (to a lawyer, anyway) passage:
It should be apparent by now what the problem with Gerstmann's approach is. Though he is a political scientist as well as a lawyer, his approach to the question of homosexual marriage is legalistic. Find a precedent (Turner v. Safly, or Zablocki v. Redhail, a case in 1978 that invalidated a law prohibiting a person who was under court order to support minor children to marry without the court's permission), and analogize it to the present case, and use the analogy to put an impossible burden of proof on your opponent, and limit the scope of your rule by rejecting further analogies on however arbitrary a ground, so that the right of a prison inmate to marry is deemed analogous to a right of homosexual marriage but not to a right of polygamous marriage, because the polygamist, unlike the homosexual, is not denied the right to marry the person of his (first) choice.This is what is called "legal reasoning," and it is hard to take seriously.
I've quite a lot to say about legal reasoning, the legal mind, and how we make arguments, and I hope to be putting that forward over the next few days. In the meantime, Posner's given me one more reason (besides opposition to the Bluebook) to like him.
