Judge Richard Posner, a federal judge with the 7th Circuit Court of Appeals, recently become a hero to the pro-”gay marriage” left when, by way of a “legal analysis” free from the troublesome constraints of logic, case precedent, biology, tradition and reality in general, he managed to somehow divine a long-hidden constitutional “right” for two dudes to get “married.” “How can tradition be a reason for anything?” an incredulous Posner demanded last month of attorneys defending marriage protection amendments in both Wisconsin and Indiana.

It would seem that Posner’s contempt for tradition extends to all things sexual, up to and including the puritanical presupposition that it’s always wrong for a man to rape a woman. This idea, according to Posner in his 2011 book “Economic Analysis of the Law” (8th edition), is evidently an equally archaic tradition that, like the institution of natural marriage, needs a significant overhaul.

Posner’s suggestion? Perhaps it’s time the government begin issuing “rape licenses” (I kid you not) since, and based upon an exclusively utilitarian and morally relative cost-benefit analysis, the “right to rape,” for some men at least, “exceeds the victim’s physical and emotional pain.”

On page 216, Posner, a Reagan appointee considered “conservative” in “progressive” circles, writes, “Rape bypasses the market in sexual relations (marital and otherwise) in the same way that theft bypasses markets in ordinary goods and services, and it should therefore be forbidden.”

OK, while this is an oddly detached and clinical start to a discussion on rape, it is, so far, not entirely unreasonable. Posner would have been well served to stop here. But, and much like those who are the subject of his rape analysis, he does not stop.

“But,” continues Posner – I didn’t know there were any “buts” when it comes to rape – “But some rapists derive extra pleasure from the fact that the woman has not consented. For these rapists, there is no market substitute … and it could be argued therefore that, for them, rape is not a purely coercive transfer and should not be punished if the pleasure to the rapist (as measured by what he would be willing to pay – though not to the victim – for the right to rape) exceeds the victim’s physical and emotional pain. There are practical objections [No, really? Practical objections to rape?] … [b]ut the fact that any sort of rape license is even thinkable [what kind of bigoted rape-o-phobe would suggest otherwise?] … is a limitation on the usefulness of that theory.

“What generates the possibility of a rape license,” he persists (hold off, fellas, they’re not available yet), “is the fact that the rapist’s utility is weighted the same as his victim’s utility. If it were given a zero weight in the calculus of costs and benefits, a rape license could not be efficient. The only persuasive basis for such a weighting, however, would be a moral principle different from efficiency.”

And herein lies the rub. We all know what Posner thinks about “moral principles.” He’s a moral relativist. There are no moral principles, most especially “traditional” moral principles. I mean, “How can tradition be a reason for anything?”

But wait, there’s more. You gals trapped in one of those “traditional” marriages needn’t fret. Posner’s got you covered, too. “Marital rape?” C’mon, is there really such a thing?

“In a society that prizes premarital virginity and marital chastity [I know, sheesh, right?], the cardinal harm from rape is the destruction of those goods and is not inflicted by marital rape,” he writes.

“… The nature of the harm to the wife raped by her husband is a little obscure,” he continues. “If she is beaten or threatened, these of course are real harms inflicted by an ordinary assault and battery. Especially since the goods of virginity and of chastity are not endangered, the fact of her having intercourse one more time with a man with whom she has had intercourse many times before seems peripheral to the harm actually inflicted but is critical to making the offense rape.

“Most of the reasons for not making marital rape a crime have lost force with time,” he laments.

Of late a fanciful meme has taken root among the “progressive” left. It’s one that imagines ours as a patriarchal “rape culture,” which fosters an environment wherein women are systematically raped with impunity (especially on our nation’s college campuses).

Apparently, the solution is for chicks to pierce and tattoo themselves, declare “slut pride” and parade nude in “slut walks” across the globe. But that’s an outlier.

I finally get it. Posner is the “rape culture.” I wonder how these mouth-frothing “marriage equality” lefties will react to his permissive approach to rape. In much the same way, I suppose, they reacted to myriad accusations of sexual harassment and assault lodged against Bill “depends-on-what-is-is” Clinton. With total silence and self-serving hypocrisy.

None of this should surprise anyone. Richard Posner is a faithful disciple of Alfred Kinsey, the anti-science, anti-morality left’s sexual messiah. Kinsey was a bug doctor turned “sexologist.” Though married to a woman who took part in his many filmed “scientific” orgies, Kinsey was a promiscuous homosexual and sadomasochist. He managed to completely upend and twist the world’s perception of human sexuality in the 1950s and ’60s with his world famous “Kinsey Reports.”

Even today, most are completely unaware that during his tenure at Indiana University, Kinsey facilitated, with stopwatches and ledgers, the systematic sexual abuse of hundreds, if not thousands, of children and infants – all in the name of science. His research also “found” that rape doesn’t really hurt women. In his 1953 volume “Sexual Behavior in the Human Female” at page 122, Kinsey wrote, “Among the 4,441 females [reporting rape] on whom we have data, there was only one clear cut case of injury … and very few instances of vaginal bleeding, which however, did not appear to do any appreciable damage.”

Starting to see what makes Posner click? “His Honor” is a dyed-in-the-wool Kinseyite.

Though Kinsey’s “research” has long since been completely debunked and discredited, the elitist left, to include Judge Posner, even still relies on it to push its own sexual anarchist worldview. Writing in his 1992 book, “Sex and Reason,” for instance, Posner gushed, “The two Kinsey reports remain the high-water mark of descriptive sexology.” He calls Kinsey the “central figure” in the “scholarly science” of sexology.

Raped? Well, suck it up, walk it off and congratulate yourself.

You’ve reached Posner’s “high-water mark.”

Ed Whelan of the Ethics and Public Policy Center has been doing a great job at National Review Online debunking Judge Richard Posner’s opinion striking down the Indiana and Wisconsin marriage laws for a panel of the U. S. Court of Appeals for the Seventh Circuit on September 4 (see here, here, here, and here).

I will note here just one thing that jumped out at me in both the oral arguments and the opinion. Judge Posner makes the following argument (pp. 22-23 of the opinion):

Consider now the emotional comfort that having married parents is likely to provide to children adopted by same-sex couples. Suppose such a child comes home from school one day and reports to his parents that all his classmates have a mom and a dad, while he has two moms (or two dads, as the case may be). Children, being natural conformists, tend to be upset upon discovering that they’re not in step with their peers. If a child’s same-sex parents are married, however, the parents can tell the child truthfully that an adult is permitted to marry a person of the opposite sex, or if the adult prefers as some do a person of his or her own sex, but that either way the parents are married and therefore the child can feel secure in being the child of a married couple. Conversely, imagine the parents having to tell their child that same-sex couples can’t marry, and so the child is not the child of a married couple, unlike his classmates.

Judge Posner’s set-up of this hypothetical situation sounds like a demonstration of how same-sex “marriage” couldharm children raised by same-sex couples:

Suppose such a child comes home from school one day and reports to his parents that all his classmates have a mom and a dad, while he has two moms (or two dads, as the case may be). Children, being natural conformists, tend to be upset upon discovering that they’re not in step with their peers.

Perhaps it is a function of his long judicial career, but Judge Posner seems to think that it is entirely the law which will determine whether such a child experiences “comfort” or distress from such a situation. If the law says that the two women or two men raising the child cannot be “married,” the child will experience distress. But if the law says that the two women or two men raising the child are “married,” then they will experience “emotional comfort,” presumably from the knowledge that their family is just like that of their friends.

Except, even in Judge Posner’s own framing of the situation, it is not the absence of a marriage certificate that makes the children feel different from his peers. It is that “all his classmates have a mom and a dad, while he has two moms (or two dads, as the case may be).” If the child’s “two moms” or “two dads” are permitted to “marry” — well, “all his classmates” will still have “a mom and a dad,” while the child in question will still be “not in step with [his] peers” because he will still not have a mom and a dad!

Judge Posner is naïve in the extreme if he thinks that such a child would care more about whether his caregivers have a certificate from the government than about whether his family includes something as fundamental on a human level as a mother and a father.

This article was originally posted at FRCblog.com.

On Tuesday August 27, Seventh Circuit Court of Appeals judge, Richard Posner, grilled attorneys from Wisconsin and Indiana who were defending true marriage. Posner’s noxious bias dripped unnoticed by Slate writer, homosexual Mark Joseph Stern, who sycophantically described Posner as possessed of an “unapologetic bias toward reality and logic.” Riiight…

While “progressives” took pleasure in the judicial demeanor of Posner, describing his “withering bench slaps” and “string of brutal retorts” as “exhilarating, satisfying, hilarious, and fun”  “schadenfreude,” law professor Josh Blackman described Posner as a “bully from the bench.”

Perhaps Stern and Posner should spend some time thinking about the logical outworkings of these “progressive” propositions upon which the legal redefinition of marriage depend:

• Marriage has no inherent connection to “gender” (aka biological sex).

• Marriage has no inherent connection to procreative potential.

• Marriage is solely constituted by love.

Those, I believe, fairly summarize the assumptions or propositions that animate the political Left. So, what are the logical implications of these non-objective assumptions?

Well, if marriage has no inherent connection to either biological sex or reproductive potential, how do “progressives”—most of whom defend marriage as inherently binary—defend their prohibition of plural unions? Where do they derive their notion that marriage is the union of two people? Conservatives have a rational explanation for the number two, an explanation which, by the way, derives from reality. There are two sexes. The sexual union of one member of each sex is the type of union that naturally produces children who have needs and rights that the government has a vested interest in protecting. The government has no interest in ascertaining fertility or in compelling procreation (and certainly no interest in affirming love). Rather, the government has an interest in recognizing, regulating, and promoting the type of relationship that naturally produces children.

What accounts for progressives’ interest in limiting marriage to two people? They certainly can’t appeal to “tradition” since they, like Judge Posner, hold tradition in contempt. And they can’t appeal to the needs and rights of children because they have argued that marriage has no inherent connection to children (which makes it passing strange that Posner spent so much time discussing the needs and rights of children).

And what about the logical implications of the Left’s proposition that marriage is solely constituted by love? Aren’t three, four, or five people capable of loving one another?

Let’s take a closer look at the infamous exchange  between the interrupting interlocutor Posner and Timothy Samuelson, the Wisconsin assistant attorney general tasked with defending marriage:

Posner: What concrete factual arguments do you have against homosexual marriage?

Samuelson: Well, we have, the Burkean argument, that it’s reasonable and rational to proceed slowly.

Posner: That’s the tradition argument. It’s feeble! Look, they could have trotted out Edmund Burke in the Loving case. What’s the difference? [Note: Loving v. Virginia was a 1967 decision striking down bans on interracial marriage]… There was a tradition of not allowing black and whites, and, actually, other interracial couples from marrying. It was a tradition. It got swept aside. Why is this tradition better?

Samuelson: The tradition is based on experience. And it’s the tradition of western culture.

Posner: What experience! It’s based on hate, isn’t it?

Samuelson: No, not at all, your honor.

Posner: You don’t think there’s a history of rather savage discrimination against homosexuals?

What is most notable but least discussed—at least by “progressives”—is how Posner twisted the argument. Samuelson appealed to tradition in defending marriage as inherently sexually complementary. Posner countered by citing bans on interracial marriage as examples of when tradition was wrong. Then Samuelson argued that tradition (i.e., the traditional view of marriage as sexually complementary) is based on experience, and Posner, either due to a failure in close listening or to being deafened by his own bias, declaimed, “What experience! It’s based on hate isn’t it?” Samuelson, referring to the traditional view of marriage as sexually complementary, disagreed with Posner regarding this tradition being based on hate. Posner responded with the non sequitur: “You don’t think there’s a history of rather savage discrimination against homosexuals?” Posner’s question was utterly irrelevant, since Samuelson clearly was not referring to the “tradition” of banning interracial marriage.

Was Posner suggesting that tradition is absolutely and always devoid of value and at odds with truth? Are our current traditions devoid of value and at odds with truth? Does the fecklessness of some traditions invalidate all traditions? Shouldn’t we discriminate between good and bad traditions? Shouldn’t we allow for the possibility that some traditions have value in the same way that some legal precedents have value despite the fact that others are informed by ignorance, irrationality, and even hatred?

The good news is the best arguments in favor of retaining sexual complementarity in the legal definition of marriage have little to do with tradition and everything to do with logic and reality. Unfortunately, these arguments were not well-articulated by the two attorneys defending marriage, which is a problem all too common among many conservative attorneys, politicians, and pundits.

Since Posner suggested that bans on interracial marriage are analogous to so-called bans on same-sex “marriage,” a further discussion of the weakness of his analogy would have been helpful. Such a discussion would lead to the larger question that too few in society—including Posner—discuss, which is, “What is marriage?”

Posner, who Stern reveres for his grounding in logic and reality, asked this demagogic question of Samuelson:

Think back to when you were six. Suppose you’ve been adopted by same-sex parents. You come home one day from school, and you say, “You know, all the other kids in my class, they have a mom and a dad. I just have two dads (or two moms), and you know, what’s that about?” And suppose the parents say, “Well, you know, in our society an adult can marry a person of the opposite sex or a person of the same sex. But you know it’s marriage in both cases. So, your classmates, their parents are married. Your parents are married.”

….Now contrast that with a situation where the parents say to the child, “Well, you know, we’re your parents, but we’re not allowed to get married.” Which do you think is better for the psychological health and welfare of this child: to have a married same-sex couple or an unmarried?

What is remarkable is the absence of logic in Posner’s languid, intellectually vacant question, which is nothing more than an appeal to emotion.

Without a single argument or a definition of health and welfare (or their corollary, “harm”), Posner implies that the harm done to this child rests with marriage laws rather than the adults who have adopted this child, intentionally denying him or her a mother or a father.

Posner’s hypothetical scenario ignored the more essential and prior harm done to children acquired by homosexuals. Here’s a question for Posner: Which would be better psychologically for a child, to be raised by a mother and father or to be denied either a mother or father?

Posner was suggesting that marriage must be redefined by jettisoning the most fundamental feature of marriage (i.e., sexual complementarity) so that young children don’t feel bad about the volitional choices the adults raising them have made. The answer to the problem of children being denied a mother and father, however, is not to create a legal fiction that treats marriage as if it has no connection to sexual complementarity.

Further, Posner’s astonishing “argument,” if consistently applied, would preclude the expression of all moral propositions that make children “feel bad,” including any moral propositions codified in law.

The issue that Posner leaps over is that marriage actually has a nature that society merely recognizes. Society does not create marriage out of whole cloth. Most “progressives” even acknowledge that truth every time they assert that marriage is composed of two people. They believe that one of the inherent and immutable constituent features of marriage is its binariness.

Conservatives agree with “progressives” that marriage has a nature. We simply disagree on what that nature entails. Conservatives argue that sexual complementarity is the central constituent feature of marriage without which a relationship is not a marriage. In fact, it is the twoness of the sexes that accounts for the twoness of marriage in both reality and the law.

Posner goes on to say that “Indiana provides, and the federal government is carried along with it, very substantial and tangible benefits to a married couple. Now, don’t the children of a married couple, whether same-sex or opposite sex, don’t they benefit? The married parents are better off. They have all sorts of benefits….Doesn’t that make the kids better off?”

Here’s where Posner’s reductive argument fails: First, though children may benefit financially, they are harmed in other ways. Second, the financial benefits that would redound to the children of “married” same-sex couples no more justify the jettisoning of sexual complementarity from the legal definition of marriage than would the financial benefits that would redound to children being raised by siblings or polyamorists justify the jettisoning of the criterion regarding blood kinship or numbers of partners from the legal definition of marriage.

From his high and mighty perch, Posner was able to pose questions without ever having to answer any. Here are slightly altered forms of the questions that Posner asked of the two attorneys defending marriage and over which his fans slaver. Perhaps Posner could publicly share his responses:

1. There’s been a tradition of banning plural marriages and marriages between siblings. Those bans are based on hate, aren’t they? You don’t think there’s a history of rather savage discrimination against polyamorists, polygamists, and siblings who love each other?

2. Isn’t allowing plural marriages or incestuous marriages better for the psychological health and welfare of children being raised by polygamists, polyamorists, or close blood relatives (whether homosexual or heterosexual)?

3. Why do you prefer adoption by couples to adoption by groups of more than two? Why do you prefer adoption by people not closely related by blood to homosexual siblings who love each other? Why punish children whose parents happen to be polyamorists or close blood relatives? Why do you want children being raised by polyamorists to be worse off, because they don’t have the financial and psychological benefits of having married parents?

4. Isn’t it much better for kids to be adopted? If you allow plural marriage, you’re going to have more adopters, right? You should be wanting to enlist people as adopters.

5. Who is being helped by bans on plural unions? How is society helped by plural union bans? No one is trying to force polyamorists into binary marriage. So, what is the harm of allowing these people to marry those they love? Does it hurt binary marriage?

I will add this question: Why should marriage be limited to people in relationships characterized by romantic/erotic love as opposed to platonic love or no love at all? How would society be harmed if two adult brothers in a platonic relationship were to “marry”? If these two brothers were to adopt children, how would their children be harmed if they were to be able to marry? How would society be harmed?

Posner’s words oozed arrogance and ignorance. Just another drop of arsenic into the water that America drinks like Kool-Aid.

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