Posner On the Courts And LBGT Rights

Richard Posner has a piece arguing that the courts have been essentially irrelevant to the progress made by gays and lesbians in the United States. Longtime readers will not be surprised to find that I find this argument not merely wrong but dumbfounding.

This something that djw and I have had to confront in our project on democratic theory and judicial review, but the extent to which scholars assessing judicial review assume that changes in public opinion can be expected to straightforwardly manifest themselves in “majortitarian” legislatures is baffling. Not only is this assumption wrong, it’s so obviously wrong that I don’t think anybody relying on the assumption would actually defend it independently. Posner can’t think that Congress would quickly repeal DOMA had the courts upheld it — but his argument is nonsensical without the assumption.

There’s one additional argument Posner makes that I didn’t get to but is worth addressing:

If there was a backlash to Lawrence, it was slight, because Lawrence wasn’t that big of a deal. For by 2003, there was virtually no enforcement of laws against homosexual sex, just as there was virtually no enforcement of the criminal laws, which are still on the books in many states, against adultery and fornication.

This the same fallacy that can be seen (as I’ve pointed out before) in Potter Stewart’s Griswold dissent. Connecticut’s ban on the use of contraception, Stewart asserted, was “obviously unenforceable.” On one literal level, this is true — in 1965 the police were not invading people’s homes and arresting them for using contraception. But in a much more important level, it is clearly false. The relevant metric is not how many people were arrested for using contraception but how many Planned Parenthood clinics were operating in Connecticut in 1965 — i.e. “none.” The ban on contraception did not prevent married couples as a class from using contraception, but it did prevent people without private doctors from obtaining free or subsidized contraception because such clinics could not operate openly. So Griswold mattered, and its effects are a powerful defense of its holding.

The same thing is true of Lawrence. It is absolutely true that even in Texas bans on “sodomy” were almost never applied against adults having consensual sexual relations. (This helps to explain the unusual facts of the case — the plaintiffs who brought the challenge almost certainly didn’t actually violate the statute.) But this doesn’t mean that Lawrence was irrelevant. Bowers had all kinds of awful ancillary effects in areas such as family law; bans on “sodomy” may not have prevented gays and lesbians from having sex with each other but in many states it mate it harder for them to adopt children and imposed other legal disabilities. Lawrence was very important for reasons that extends well beyond the narrow language of the statute it struck down, and it would have been enormously difficult to achieve these gains without the intervention of the Supreme Court (and, conversely, the Supreme Court’s approval of such discrimination in Bowers had a powerful negative impact.)

The courts don’t do a great deal to determine the underlying cultural context in which politics happens, but the same basic configuration of public opinion can produce very different policy results. It’s here were the courts matter, and it’s the failure to take this into account where the arguments made by Posner (and many other scholars and pundits) fail.