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The Seventh Circuit of the U.S. Court of Appeals put out its ruling on same-sex marriage yesterday. A unanimous three-judge panel declared that Wisconsin and Indiana’s refusal to recognize same-sex marriage (misdescribed by the press as a “ban”) is unconstitutional.

Judge Richard Posner, author of the opinion, wrote, “Homosexuals are among the most stigmatized, misunderstood, and discriminated against minorities.” This sort of claim is crucial for the Great Moral Cause. But it has no connection to reality.

Homosexuals have higher incomes than heterosexuals, and even higher amounts of disposable income. Moreover, it’s not just a question of economic success. The gay man is a stock character on T.V. and is seen as an effective marketing tool because he has cultural cachet. Harvard has plenty of gay and lesbian students, graduate students, and professors.

To compare homosexuals today with blacks under Jim Crow is obscene. In fact, to compare homosexuals today with blacks today is obscene. As we recently saw in Ferguson, Missouri, young black men are especially vulnerable to police violence. They’re also being killed by each other at a terrible rate. This is not true for gay men, far from it.

And what about gay and lesbian professors at Ivy League Schools as compared to black professors? Or gay and lesbian partners at Chicago law firms where Posner works as compared to black partners. Or gay and lesbian federal judges as compared with black judges? In 1965, the year Congress passed the historic civil rights legislation, black representation in these elite institutions was ZERO. Today, as people like Richard Posner delude themselves into imagining themselves heroically overturning discrimination, gay and lesbian representation in elite institutions is substantial and probably in excess of their proportion of the overall population.

Perhaps, through the use of his reason, Judge Posner has come to the conclusion that it’s a good thing for men to marry men, and women to marry women, and that our society should therefore encourage just that by changing its marriage laws. But “among the most stigmatized, misunderstood, and discriminated against”?

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