Judge Richard Posner eloquently defended the constitutional rights of all Americans

Judges matter.

We've been reminded of that ever since Congress abandoned its role as a check on executive power, as the occasional court ruling slows the president's continual efforts to break the law, sometimes resisted even by his hand-picked minions on the U.S. Supreme Court who sometimes favor the Constitution over obedience to the whims of their sponsor.

Typically, Supreme Court justices issue the most important judicial opinions. But no voice on the high bench resonated louder than that of Richard Posner, who died last Tuesday. And while he wrote eloquently on thousands of cases in more than a third of a century on the Chicago-based 7th U.S. Circuit Court of Appeals, one decision in particular affected the lives of millions of Americans: Baskin v. Bogin.

Penny Bogin was the clerk for Boone County, Indiana, a state that in 2014 still refused to recognize gay marriages performed in the 27 other states where it was legal.

A U.S. District Court ruled the Indiana law violated the Constitution's guarantee of equal protection.

The matter, combined with a similar case in Wisconsin, seemed headed for the Supreme Court. But first the case had to stop at the 7th Circuit, where Posner cut it off at the pass.

Haters rarely care about the people they hurt beyond their intended targets. Posner quickly drilled down to who Indiana's law truly harmed the most, writing:

"Formally these cases are about discrimination against the small homosexual minority in the United States. But at a deeper level, as we shall see, they are about the welfare of American children."

Posner had a genius for plain language:

"Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents — model citizens really — so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure."

Indiana's argument, "is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional. ... The harm to homosexuals (and, as we’ll emphasize, to their adopted children) of being denied the right to marry is considerable."

Sun-Times file

Posner's decision runs almost 40 pages, but the crux is:

“Marriage confers respectability on a sexual relationship; to exclude a couple from marriage is thus to deny it a coveted status. Because homosexuality is not a voluntary condition and homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world, the disparagement of their sexual orientation, implicit in the denial of marriage rights to same-sex couples, is a source of continuing pain ..."

Many cases addressed the issue. But Posner's ruling on Baskin v. Bogin took the U.S. Supreme Court out of the game. Indiana's argument wasn't just refuted by Posner, as Esquire magazine noted, it was “tore into tiny pieces, lit on fire, and fed through a wood chipper.”

The Supreme Court declined to hear the case. Gay marriage became legal nationwide. In his ruling, Posner saw what would come next:

“Not that allowing same-sex marriage will change in the short run the negative views that many Americans hold of same-sex marriage. But it will enhance the status of these marriages in the eyes of other Americans, and in the long run it may convert some of the opponents of such marriage by demonstrating that homosexual married couples are in essential respects, notably in the care of their adopted children, like other married couples.”

Bingo. Even Indiana Gov. Mike Pence, who as a congressman co-sponsored a constitutional amendment banning gay marriage, foreshadowed his heroic refusal as vice president to certify Trump as the victor of the 2020 election, despite his having lost, by reminding Indiana residents they "are not free to disobey" court rulings and "no one should be harassed or mistreated because of who they are, who they love, or what they believe."

That lesson did not stick, unfortunately. Denied gay marriage to vilify, Republicans nimbly shifted to fear-mongering the prospect of running into a trans person in a restroom, to serve as the shiny object dangled before voters' eyes as their pockets are picked.

Alas, Judge Posner is no longer around to talk sense to them.

Richard A. Chapman/Sun-Times