Idaho governor Butch Otter this week filed an amicus brief in response to the pending Petitions for Writ of Certiorari from the Sixth Circuit same-sex marriage decision (which upheld the states' bans).
In it, Governor Otter argues that the Idaho case of Latta v. Otter is a better vehicle than any of the Sixth Circuit cases for the Supreme Court's ultimate and inevitable ruling on the question of whether same-sex marriage bans violate the Fourteenth Amendment. Primarily, he says, Idaho alone has vigorously defended its ban against all challenges, including the argument that such bans should be subjected to so-called "heightened" judicial scrutiny.
The governor also attacks the very idea of same-sex marriage as an unreasonable "redefinition" of a traditional institution. To bolster this argument, he says:
Writing not long ago, Judge [Richard] Posner described same-sex marriage as "a radical social policy." Richard A. Posner, Should There Be Homosexual Marriage? And If So, Who Should Decide? 95 Mich. l. Rev. 1578, 1584 (1997).
But why cite to something Judge Posner wrote "not long ago" in 1997, when that same Judge Posner wrote about same-sex marriage just this year? Entirely omitted from Governor Otter's brief is any mention of the 2014 case Baskin v. Bogan, in which Judge Posner, writing for a three-judge panel of the Seventh Circuit Court of Appeals, struck down the same-sex marriage bans of Indiana and Wisconsin.
In that opinion, Posner writes:
[Wisconsin's] argument from tradition runs head on into Loving v. Virginia, 388 U.S. 1 (1967), since the limitation of marriage to persons of the same race was traditional in a number of states when the Supreme Court invalidated it. Laws forbidding black-white marriage dated back to colonial times and were found in northern as well as southern colonies and states. Tradition per se has no positive or negative significance. There are good traditions, bad traditions pilloried in such famous literary stories as Franz Kafka's "In the Penal Colony" and Shirley Jackson's "The Lottery," bad traditions that are historical realities such as cannibalism, foot-binding, and suttee, and traditions that from a public-policy standpoint are neither good nor bad (such as trick-or-treating on Halloween). Tradition per se therefore cannot be a lawful ground for discrimination - regardless of the age of the tradition.
Baskin v. Bogan, 766 F.3d 648, 666 (7th Cir. 2014) (internal citations omitted). (Otter's brief also omits any mention of Loving v. Virginia).
Regardless of whether Judge Posner once or still believes same-sex marriage is "a radical social policy," today he believes it simply doesn't matter for the purposes of the Fourteenth Amendment. It strikes me as odd to quote a specific author as an authoritative source without acknowledging his most important writing on the subject at issue. In this case, the controlling (and contrary) law of the Seventh Circuit.