Gay Marriage Ruling: Who Is Richard Posner?

The Chicago Tribune's Eric Zorn orgasmically blogs about federal judge Richard Posner's overturning of a gay "marriage" ban in Indiana and Wisconsin here, describing the judgment as a stinging rebuke. (The full text of Posner's opinion is posted there.) According to Zorn, Posner "didn't simply overturn the ban on gay marriage in Wisconsin and Indiana. In the words of Charles Pierce at Esquire, he 'tore (it) into tiny pieces, lit on fire, and fed through a wood chipper and into an acid bath.'"

Posner's reasoning is that it is evolutionarily backward to deny the useful role of homosexuals in society.

"Although it seems paradoxical to suggest that homosexuality could have a genetic origin, given that homosexual sex is non-procreative, homosexuality may, like menopause, by reducing procreation by some members of society free them to provide child-caring assistance to their procreative relatives, thus increasing the survival and hence procreative prospects of these relatives. This is called the “kin selection hypothesis” or the “helper in the nest theory.”

Well, I'm glad we trotted out a name for this theory, just to show it's legit. Anthropologists and sociologists have thought about it, so it's for real. This is a very old and boring idea, along the lines of the idea that loners evolved so that the group could always have outcasts to be awake at the edges at night, watching for the wolves.

How formulating the useful role homosexuals might play in society answers the questions concerned with defining marriage and the right of homosexuals to marry each other is lost to me. Anyway, instead of going through all this societal trauma to get gay marriage legalized, it seems to me much more efficient to assign a homosexual to any marriage needing a "helper in the nest", thus making for a marriage-plus-one arrangement where Uncle Ronny's nesting role is formally recognized by the state. Doesn't that sound beautiful?

I mean, if we're being pragmatic here, that seems best to me. And pragmatism is our battle-cry, if we're Richard Posner or Eric Zorn.

Allow me to introduce you to this judge Richard Posner, a judge such as our people deserve. According to Nancy Pearcey, he

holds to legal pragmatism, which is based on the application of Darwinism. He has been dubbed "Darwin's New Bulldog" because he assumes an "adaptationist" version of morality. The moral code of every society, he writes, is "shaped by the exigencies of life in that society," and "to the extent that it is adaptive to those exigencies, the code cannot be criticized convincingly by outsiders." He has argued that Nazism was not wrong or evil, it was simply not "adaptive" to the German people at the time. He terms his position "pragmatic moral skepticism."

Let's understand how meaningless "pragmatism" is. Posner rejects legal positivism, and embraces law as something that ought to adapt to the people. So...gay marriage ought to be legal because the people want gay marriage to be legal. Divinity, morality, natural law, legal precedent, the Constitution, not of these need enter into our thinking. In fact, they must be barriers.

Here is judge Richard Posner. He does not judge the cause of the fatherless, nor defend the rights of the needy. Behold his history:

1. Child slavery. He made the New York Times in 2011, while being sycophantically described as "brilliant" and "confounding", for destroying a lawsuit against Firestone Rubber for exploiting child laborers. You can hear the bewilderment of the plaintiff's lawyers, since this case should have been a slam dunk for them. After all, if the waged working men are practically slaves working twenty-hour days, how much more these children. All  three of the judges agreed that under international law, Firestone could be sued. The judgment came down to the fact that Posner wasn't willing to say that enslaving children in dangerous conditions was bad. No, I'm serious. Read the article. As one of the plaintiff's lawyers said, "it’s incredible that we’ve now introduced the notion of relative human rights.”

2. Statutory rape. Read about it here, in a paper by Lewis Bossing addressing the repercussions of Posner's "pragmatic" definition of statutory rape. But you don't have to hop over to that paper. Instead, simply read Posner himself, from Sex and Reason (footnoted in Bossing's paper).

It is curious to reflect that if the age of consent for homosexual relations were lowered to 15, which is the age of consent for girls in Sweden, most pederasty would be legalized. This might be a sensible reform .... "Pederasty" has an awful sound in American ears; the sense of revulsion that the practice inspires, in all but the pederasts themselves, lies deeper than any reason that could be offered.

Reason, dear friends, is summoned into our hallowed legal halls. Let us, above all else, be reasonable. None of this is really so bad, is it? Of course, not, friend. Be reasonable. 

Perhaps the greatest moral question here is "what's the harm?" Although we might have to revisit that if the issue of child slavery comes back up...

3. Hitler insufficiently pragmatic. Here's a nifty article about Posner from a fan. He is a self-styled pragmatist who, problematically, comments publicly on cases, because he sees it as his social duty to make sure the United States does not go the way of Iran. Which way should the U.S. go? The way of will to power. I sure hope you all are ready to be ruled by the likes of Posner, because they know what's best...Nietzche. Nietzche's best. Let's just not scare the hoi polloi too much, though. We must be adaptive (more on that below). Posner's interpretation and exercise of law is described by a proponent as "ambitiously technocratic". We are told that he is leading an "assault on ethics", and that his bugbear is "moral philosophy".

We don't need universal moral foundations, only ad hoc solutions to practical problems. He insists that he has reached his present position on account of his subsequent years of experience, not as a fall-back plan following his unsuccessful philosophical project. "Dworkin's criticisms were good," he acknowledges, "but those were criticisms from within moral philosophy. [My present] skepticism comes from another ten or fifteen years of observing the indeterminacy of this kind of philosophical debate."

The consequences of Posner's pragmatic view of morality can be peculiar, to say the least. "One reason for the widespread condemnation of the Nazi and Cambodian exterminations," Posner wrote in The Problematics of Moral and Legal Theory, "is that we can see in retrospect that they were not adaptive to any plausible or widely accepted need or goal of the societies in question. The genocidal policies that the United States pursued toward the American Indians were adaptive and so receive less criticism, especially as Americans who are not Indian...are the beneficiaries of those policies." But Judge John T. Noonan Jr. of the Ninth Circuit Court of Appeals noted in his response to "Problematics" in the Harvard Law Review: "No one I know criticizes Hitler because after twelve years of power he came to a bad end; he is criticized because he was a bad man doing bad deeds." 

Just to make sure you caught that last bit: people like you and I and Noonan know that Hitler was a bad man doing bad deeds. Posner's critique of Adolph Hitler is that he was not sufficiently adaptive (i.e. pragmatic). This is what happens when moral "theory" has no place in law.

I'm not even going to quote or source any of the following, because examples abound online, you have but to look: people who love love love Posner for this "rational" approach talk about how he "offends" people. This is to cover the Hitler thing. You know, along the lines of "well, if you talk enough you're going to say something stupid, and he's an edgy thinker...he offends people." This is wickedness, people. Posner is a paragon and a product of our system.

4. He is a legal activist. Who thinks we should sell babies. Yes, I'm going ad hominem. Of course I am. Such a man should be attacked. Richard Posner does not seek justice. Nor does he seek, as some judges who might struggle with such a lofty concept as "justice", to simply enforce the law of the land. Nope. He wants to lead us all through our evolution into I know not what, except that it is more wonderfully Nietzchian. Check out his seminal 1995 work, entitled Overcoming Law. Law is something to get past. Why? Because it stands in the way of justice? Not at all. Law is something to get past because morality itself is something to get past. In the late seventies Posner discussed buying and selling babies on the free market in lieu of government- regulated adoption in the Journal of Legal Studies (Unfortunately the link from Google scholars to the paper, The Economics of the Baby Shortage, isn't working).

An appalling and horrible thing has happened in the land...my people love it so, but what shall you do when the end comes?

Understand that Christians stand in the way of the only two goods that moral relativists and pragmatists can even conceive of: power and evolution. We are holding the evolution of mankind back. More practically, American Christians are holding back the evolution of Americans. Evolution to what and for what? We know not. But Americans know that it is good to evolve. Woe to him who stands in the way.

Homosexual marriage in the West is not that big a deal, considering where we already are. The fact that this conversation is even being had means that it is over. I wrote this so that the Christian would know where he stands in society, what's in store if he doesn't play along, and what sort of man opposes him.