Judge Richard Posner: The Last Honest Conservative?

There once was a time when being a conservative did not automatically mean that one was a far right Christian extremist, a racist, a greed driven would be oligarch, or some combination of the three.  Also, conservatives once honored knowledge and honesty.  Those days, sadly, are long gone and today's self-pronounced conservatives are more midway barkers or charlatans selling snake oil than honest politicians (yes, its an oxymoron) when they are not preaching the defacto establishment of conservative Christianity as the national religion.  Given how ugly most conservatives have become, it was a breath of fresh air to see Judge Richard Posner of the 7th Circuit Court of Appeals speak out honestly during the recent oral arguments on the Wisconsin and Indiana same sex marriage bans.  A piece in Salon again looks at the startling honesty of Posner's comments and questions to those supporting state sponsored discrimination.  Here are highlights:

Judge Richard Posner has written nearly 40 books, hundreds of articles and thousands of judicial opinions. He is, by far, the most cited legal scholar alive today (probably ever). Nominated by Ronald Reagan, he sits on the United States Court of Appeals, just below the Supreme Court. He has publicly feuded with Justice Antonin Scalia over how judges actually decide, and should decide, cases. And, over the last year, he has spoken truth to power in three high-profile cases all likely to be decided by the Supreme Court.

On issues of abortion, same-sex marriage and religious objections to Obamacare, Posner said exactly what needed to be said with honest, unequivocal and, to some perhaps, startling clarity.

The University of Notre Dame didn’t want to provide certain forms of required contraception to its students and employees so it went to court seeking a religious exemption. The bizarre thing about the case is Notre Dame was already exempt. What it wanted was not to fill out the form that would have guaranteed the university an exemption. Notre Dame claimed, to most people’s disbelief, that filling out the short form and asking for the exemption was itself a substantial burden on its religious exercise.

Posner would have none of it. At the oral argument, he took a harsh tone with the lawyer for Notre Dame who refused again and again to answer directly how filling out a piece of paper could possibly be a “substantial burden on religion.”

Eventually, Notre Dame lost (the court of appeals uses three-judge panels) and the final opinion written by Posner said this:  . . . . What makes this case and others like it involving the contraception exemption paradoxical and virtually unprecedented is that the beneficiaries of the religious exemption are claiming that the exemption process itself imposes a substantial burden on their religious faiths …

A few months later, Posner, again along with two other judges, reviewed the validity of a brand-new Wisconsin law requiring doctors who perform abortions to have admitting privileges at nearby hospitals.

In affirming the stay, Posner noted that “no documentation of medical need for such an admitting privileges requirement was presented to the Wisconsin legislature when the bill that became the law was introduced.” He also noted that no “other procedure performed outside a hospital, even one as invasive as a surgical abortion (such as a colonoscopy) …  and even if performed when the patient is under general anesthesia … is required by Wisconsin law to be performed by doctors who have admitting privileges at hospitals within a specified, or indeed any, radius of the clinic at which the procedure is performed.”  Posner added that the risks of colonoscopies are three to six times greater than the risks of abortions. . . . .

Finally, Posner was recently one of three judges to hear oral argument in a lawsuit challenging Wisconsin and Indiana’s ban on same-sex marriage. Although the case has not yet been decided, there is no question how Posner will vote. When the lawyer for Wisconsin justified the ban based on “tradition,” Posner responded by saying “It was tradition to not allow blacks and whites to marry — a tradition that got swept away.” He also said the ban stems from “a tradition of hate … and savage discrimination” against same-sex couples.

Posner thought it was “obvious” that filling out a form cannot possibly be a substantial burden on religion, that the state of Wisconsin and Indiana didn’t care one bit about women’s health when it decided to require doctors who perform abortions to have admitting privileges at hospitals, and that bans on same-sex marriage have little to do with permissible concerns Wisconsin may have about marriage and children and everything to do with unlawful and arbitrary discrimination. As a matter of law he is right about all three cases. As a matter of politics, we will have to wait until the Supreme Court decides to have our final answers.

 We need many more judges like Posner on the bench at both the state and federal level.  We need far fewer like Antonin Scalia.