We have seen that there is ample, long-standing precedent for the right to marry and that nothing in the reasoning of these Supreme Court decisions excludes same-sex marriage. But are these good decisions? The fact the Court says something does not make it right. Posner correctly warns against freely attacking the validity of disliked precedents and merely assuming the validity of favorable cases. He calls this the “‘heads I win, tails you lose’ kind of argument,” in which “if a judicial decision favors the arguer's position, the decision is treated as having intrinsic authority, quite apart from the soundness of its reasoning.” Defenders of racial segregation in schools who simply relied upon state and federal Court decisions upholding that practice were not making much of an argument, even before the Supreme Court overturned those decisions in Brown v. Board of Education.

Advocates of the fundamental right to marry must do more than point out that the Court has said there is such a right. This is no easy task. Posner made his criticism of “heads I win, tails you lose” regarding Eskridge's use of a case involving freedom of speech. Although freedom of speech is a very controversial issue, the Court's free speech jurisprudence is well developed and articulated; as I shall argue, it is the model the Court should follow in developing fundamental rights. Unfortunately, the same cannot be said for the Court's fundamental rights jurisprudence.