Indiana’s argument is that its definition of marriage has a legitimate and important aim and is a means well-tailored to that aim, a means that involves no prohibition, and is simply not concerned with prohibitions. Nevertheless, Posner’s opinion says, dozens of times, that the states prohibit, ban, forbid same-sex marriage. Among people who can distinguish between not recognizing and forbidding, that’s an untruth.
The argument’s two key, interlocked elements are optimality (what sort of child-raising is best for children) and biological parenthood (which results from sexual intercourse—the only form of sexual activity capable of generating a child). Indiana claims again and again that the two elements fit reality, and fit each other, in the belief and intention of its legislature, and in “the entire experience of Western civilization.”
Posner takes exquisite care never to allow the two elements to appear together, even by implication. His judgment never once confronts, or even mentions or alludes to, Indiana’s central, reiterated claim.
For best results, never deal with your opponents' arguments.
Labels: marriage, politics, religion