7th Circuit Court of Appeals Upholds Marriage Equality Rulings

The 7th Circuit Court of Appeals handed down a verdict today that reaffirmed earlier court findings in Indiana and Wisconsin, where voter-approved anti-gay ballot initiatives restricting marriage rights were struck down as unconstitutional.

U.S. District Judge Richard Young struck down Indiana's marriage equality ban on June 25. A proposed amendment to that state's constitution to restrict access to the legal rights and protections of marriage to heterosexuals failed to gain traction earlier this year.

Wisconsin voters approved a ballot initiative in 2006 that put marriage equality out of reach of same-sex families. The Wisconsin State Supreme Court upheld the amendment in 2010. Four years later, on June 6, 2014 the United States District Court for the Western District of Wisconsin reversed that ruling.

Both cases were appealed, and consolidated into a single case that the 7th Circuit Court of Appeals, which is located in Chicago, IL, heard on Aug. 26. The Sept. 4 verdict from the appeals court was unanimous.

In his ruling, Judge Richard Posner wrote, "The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction -- that same-sex couples and their children don't need marriage because same-sex couples can't produce children, intended or unintended -- is so full of holes that it cannot be taken seriously."

Posner also referenced the natural and immutable nature of same-sex attraction, and the heavy toll exacted by anti-gay societal and legal bias:

"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 to the homosexual community."

Proponents of marriage equality were elated.

"Today yet another federal appeals court issued a ruling affirming that no state should be able to tell two people in love they can't legally marry, just because they are gay or lesbian," Human Rights Campaign Legal Director Sarah Warbelow stated.

"LGBT families in these two states are just as deserving of the rights and protections that come with civil marriage as any other family across the country," Warbelow added. "The Supreme Court of the United States today has even more evidence that marriage equality should be the law of the land in America."

"The court has affirmed the love and commitment our plaintiffs and thousands of same-sex couples in Indiana and Wisconsin have for each other," Paul Castillo, Staff Attorney for Lambda Legal, stated. "The unanimous decision also reinforces the importance of marriage for the children of same-sex couples, who shouldn't have to grow up thinking their families are inferior to other families."

During the hearing, the court's three-judge bench asked hard, specific questions of the lawyers seeking to defend the anti-equality marriage bans. While the lawyers clung to arguments about "tradition" and "biology," Posner, appointed to the bench by Ronald Reagan in 1981, turned one repeatedly used argument from the anti-gay side into a talking point for the social upside of allowing committed couples of any gender combination to wed.

"Wouldn't the children want their parents to be married.... What do you think is psychologically better for the child?" Posner asked Indiana Solicitor General Thomas M. Fisher.

In response, Fisher struggled to make a narrow, but timeworn, argument stretch to fit the judge's line of inquiry.

"Men and women make babies and there has to be a social mechanism to deal with that," Fisher stated.

Wisconsin Assistant Attorney General Timothy C. Samuelson similarly cast about for a rationale that could withstand questions from the judges, citing "tradition" as a compelling reason to deny same-sex couples the benefits, protections, and obligations of legal marriage.

Posner, upon hearing Samuelson's argument, once again demanded rigorous legal logic.

"It was tradition to not allow blacks and whites to marry - a tradition that got swept away," Posner noted, going on to remind the assistant attorney general from Wisconsin that marriage bans targeting gays and lesbians are rooted in more than a tradition of marriage between heterosexuals only. Another tradition comes into play when states legally shut same-sex couples out of matrimony, Posner noted: A "tradition of hate ... and savage discrimination".

Judge David F. Hamilton, an Obama appointee, weighed in also, noting that tradition was the excuse for longstanding laws interfering with the right of mixed-race couples to wed.

As for the argument that society has a compelling interest to deny gays and lesbians marriage rights in a quest to promote stable marriages among heterosexuals, "I assume you're familiar with how that's been working out in practice over the past 25 or 30 years," Hamilton observed -- his point evidently being that the divorce rate among heterosexual couples has skyrocketed to an estimated 50%, with marriage bans targeting same-sex couples doing nothing to reign in the trend of broken marriages between men and women.

In a Sept. 4 story on the ruling, the Associated Press reported "Wisconsin Attorney General J.B Van Hollen said he would appeal the ruling to the U.S. Supreme Court."

Few doubt that the issue will end up once more before the U. S. Supreme Court sooner rather than later. Just over a year ago, the Supreme Court ruled against key portions of DOMA, the 1996 federal law that prevented the U.S. government from offering any recognition whatsoever to legally married couples of the same gender. The court also struck down Proposition 8, an anti-gay ballot initiative passed by a razor-thin majority of voters in California in 2008 that left the marriages of thousands of gay and lesbian families in that state intact while locking unmarried couples of the same gender out of matrimonial opportunity.

It was the Court's verdict in 2013 that opened the floodgates to a torrent of rulings across the nation striking down anti-gay laws and state constitutional amendments. But while some such as Oregon and Pennsylvania have accepted the sea change regarding gay and lesbian families and refrained from appealing court decisions striking down marriage bans, other states have offered ferocious resistance.

In Wisconsin and Indiana, hundreds of couples rushed to wed after marriage bans were found unconstitutional and a window to family equality opened. That window shut, at least temporarily, when stays were ordered on marriages for same-sex couples pending the decision of the 7th Circuit Court of Appeals.

A phenomenal 20 successive court decisions have subsequently upheld marriage equality around the country. That winning streak was broken Sept. 3 when U.S. District Judge Martin Feldman ruled that the State of Louisiana had a constitutional right to deny gay and lesbian families legal matrimony.

But that departure was anything but definitive, with Judge Feldman writing, "Clearly, many other courts will have an opportunity to take up the issue of same-sex marriage; courts of appeals and, at some point, the U.S. Supreme Court." Added Judge Feldman, "The decision of this Court is but one studied decision among many."

The unfolding legal drama goes on. The 9th Circuit Court has announced that it will take on marriage equality cases from Idaho, Nevada, and Hawaii, according to an Aug. 28 posting at Passport Magazine's blogs section.

"The Tenth Circuit issued rulings on June 25th and July 17th in cases from Utah and Oklahoma," that posting noted. "The Fourth Circuit issued a ruling on July 28th in a case from Virginia. All three decisions held that same-sex couples have a fundamental right to marry."

Marriage for same-sex families is now legal in 21 states. Twenty-nine states still bar gay and lesbian couples from marriage; legal challenges to such laws are ongoing in all but one of those states.