Submitted by Tomasz Mielniczuk on Sun, 11/29/2015 - 12:42

Above the law reports on the Richard Posner's recent re-review of The Case for Same-Sex Marriage: From Sexual Liberty to Civilised Commitment, a book pubished in 1996 by Yale Law School Professor William Eskridge. Posner reviewed this book before in 1997. He was asked to look at it again in the light of this year's Supreme Court decision in Obergefell v. Hodges, which invalidated prohibitions of same-sex marriage in all states. Posner traces the evolution of thinking about homosexuality in American society. Here is a thought-provoking excerpt:

But I want to say a little more about the change in public opinion that set the stage for Obergefell, and this will allow me to return to where I started in this Review, with my youthful discovery that there was this strange phenomenon called homosexuality. In those days a great many homosexuals concealed their homosexuality from heterosexuals in order to avoid the discrimination against homosexuals that was then rampant. The result was that those who flaunted their homosexuality—whose mannerisms or dress or occupations signaled homosexuality—were taken by heterosexuals to be typical of homosexuals, and were derided, especially since, in a prissier era than today, homosexual sex was criminalized by many states. (I am speaking primarily of male homosexuals, who have always received more critical attention than lesbians.)

But beginning in the 1960s with the Alfred Kinsey reports revealing a greater amount of promiscuity than conventional people realized existed, there was a loosening of sexual mores in general and among its effects was an increasing tolerance of homosexuals. Gradually, as that tolerance grew, fewer homosexuals bothered concealing the fact of their being homosexual. As homosexuals not readily recognizable as such by reason of mannerism, dress, or occupation began to acknowledge, or at least cease denying or trying to conceal, their homosexuality, heterosexuals discovered that most homosexuals are indistinguishable in any respect except sexual preference from heterosexuals; and so it became difficult to understand why they should be discriminated against.