Thursday, December 18, 2003

The judge sure is funky. Federal appeals-court judge Richard Posner has a problem. It is the same problem experienced by such great minds as the Reverend Pat Robertson and Nixon-era born-again Chuck Colson: he cannot conceive of two men or two women having sex with each other without animals somehow being involved.

To be fair, Posner's concern is also shared by US Supreme Court justice Antonin Scalia, who really does possess a first-class legal mind, even though the other parts of Scalia's brain are apparently still mired somewhere in the eighth grade.

But Posner, though a conservative, has never previously revealed himself to be a raving nutcase. So I was stunned to read his barnyard epithets in the latest issue of the New Republic.

Posner - who is himself a major-league cat fancier - reviews (sub. req.) a pro-gay-marriage book called Same-Sex Marriage and the Constitution, by Evan Gerstmann. Whether deliberately or not, he ends up telling us far more about himself than he does about Gerstmann's book.

To wit:

And I have not even tasked him with explaining what the state's compelling interest is in forbidding a man to marry his beloved dachshund.


But I suspect that more object for the same reason they would object to incestuous or polygamous marriages, or allowing people to marry their pets or their SUVs - that it would impair the sanctity, degrade the institution, of marriage (their marriage) to associate marriage with homosexuality.

Posner also appears to accept Scalia's dissenting argument in Lawrence v. Texas that, by overturning state anti-sodomy laws, "the majority had written finis to any law based on moral disapproval with no accompanying proof of tangible harm, such as laws forbidding sex with animals." (I'm quoting Posner, not Scalia.)

What is going on here? Earlier this year I quoted 12 years' worth of bizarre outbursts equating homosexuality with bestiality. Now a respected federal judge writing for a liberal, pro-gay-rights magazine is getting into the act.

Are the critters really that much at risk?

And by the way, for a magazine that has generally been supportive of same-sex marriage, TNR's cover package this week is heavily tilted the other way. Jeffrey Rosen is against it, and purports to show flaws in the Massachusetts Supreme Judicial Court's reasoning in the Goodridge decision. Cass Sunstein is for it, but only because he thinks it's a good idea that states such as Massachusetts experiment with it before trying to impose it at the federal level.

I actually found myself pining for Andrew Sullivan.

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