Sometimes the gods of happy coincidence smile down on us as law teachers. This last week I have been working with my Legal Theory students on rights and freedom, and on Thursday Judge Richard Posner handed down the (unanimous) decision of the US Court of Appeals, Seventh Circuit in Baskin v Bogan, striking down legislative bans on same-sex marriage in the states of Indiana and Wisconsin.
In a closely argued 40-page opinion Judge Posner finds that the states’ bans breach the Equal Protection Clause of the US Constitution. The case does not address the argument that gay marriage should be permitted as a fundamental right. The decision thus sits within a framework of classical Equal Protection ‘suspect class’ legal analysis. It finds that the same-sex-marriage bans discriminate on the basis of sexual orientation, and that such classification, being based on an immutable characteristic of the group discriminated against, proceeds…
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Utopia, you are standing in it! 
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