Gay marriage bans in Wisconsin, Indiana struck down as unconstitutional

A federal appeals court in Chicago on Thursday struck down as unconstitutional same-sex marriage bans in Indiana and Wisconsin.

The three-judge panel of the Seventh US Circuit Court of Appeals voted unanimously to invalidate the state bans, as well as measures that barred recognition of same-sex marriages performed in other states.

Writing for the court, Judge Richard Posner said state officials had presented implausible arguments in support of their adherence to the traditional definition of marriage as a union of one man and one woman.

“More than unsupported conjecture that same-sex marriage will harm heterosexual marriage or children or any other valid and important interest of a state is necessary to justify discrimination on the basis of sexual orientation,” Judge Posner wrote in a 40-page opinion.

“The grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible,” he said.

The decision marks the third federal appellate court in recent months to conclude that state efforts to limit marriage to a man-woman institution violate protections of the US Constitution.

Appeals are pending at a fourth appellate court – the Cincinnati-based Sixth Circuit – and petitions are already being submitted to urge the US Supreme Court to take up the contentious issue.

The Seventh Circuit decision affirms rulings handed down in June, one by a federal judge in Wisconsin and the other by a federal judge in Indiana. Both judges invalidated the state’s same-sex marriage ban, citing a fundamental right to marry without regard to sexual orientation.

The Seventh Circuit sidestepped that analysis. Instead, the court based its ruling on equal protection principles.

“When there is no justification for government’s treating a traditionally discriminated-against group significantly worse than the dominant group in society, doing so denies equal protection of the laws,” Posner wrote.

Posner’s opinion writing may set a new speed record in a major and complex case. The court heard oral argument nine days ago on Aug. 26. Most appeals court decisions take months, and some take a year or more.

A continuing theme throughout Posner’s decision is the incongruity between state officials arguing that their same-sex marriage bans were aimed at protecting children by encouraging traditional marriage, but failing to recognize that many same-sex couples are raising adopted children who also are worthy of protection. 

“If marriage is better for children who are being brought up by their biological parents, it must be better for children who are being brought up by their adoptive parents,” wrote Posner, who was named to the bench by President Ronald Reagan. 

“The state should want homosexual couples who adopt children… to be married,” he said.

According to estimates, more than 200,000 American children are being raised by homosexuals, most of them same-sex couples, the judge said. In Indiana and Wisconsin, same-sex couples are raising roughly 3,000 children in each state. 

Denying same-sex couples the right to marry and the corresponding right to obtain the benefits and protections of marriage, imposes a significant harm on the couples – as well as on their children, Posner said. 

The judge was particularly critical of arguments made by Indiana officials that the same-sex marriage ban was designed to channel the procreative potential of opposite-sex couples to accidentally conceive and have children. The state’s marriage laws are intended to coax such couples into a stable family relationship capable of caring for any offspring.

“In other words, Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry but that gay couples, unable as they are to produce children wanted or unwanted, are model parents – model citizens really – so have no need for marriage,” Posner wrote. 

“Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry,” he wrote.

The judge added: “Go figure.”

The appeals court also rejected state arguments that judges should leave the contentious issue of same-sex marriage to the democratic process to resolve. 

Posner noted that in Wisconsin, homosexuals represent roughly 2.8 percent of the state’s population. 

“Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law,” he said.

Currently, 19 states and the District of Columbia recognize same-sex marriages. Thirty-one states have enacted same-sex marriage bans by statute or constitutional amendment. 

Within the past year, more than 80 lawsuits have been filed in both state and federal court challenging those bans.

Federal judges have struck down same-sex marriage bans in Utah, Oklahoma, Virginia, Texas, West Virginia, Tennessee, Illinois, Ohio, Michigan, Idaho, Oregon, Pennsylvania, Wisconsin, Indiana, Kentucky, Colorado, and Florida. A federal judge in Louisiana this week upheld that state’s ban.

Apart from trial judges, panels of the Fourth Circuit in Richmond, the Tenth Circuit in Denver, and now the Seventh Circuit in Chicago have affirmed rulings striking down bans in Utah, Oklahoma, Virginia, Wisconsin, and Indiana.

The Seventh Circuit cases were consolidated for purposes of argument. They are the Indiana case: Baskin v. Bogan (14-2386, 14-2387, 14-2388) and the Wisconsin case: Wolf v. Walker (14-2526).