A three-judge panel on the U.S. Seventh Circuit Court of Appeals unanimously affirmed on Thursday that bans on same-sex marriage in Wisconsin and Indiana are unconstitutional.
Writing the decision, U.S. Circuit Judge Richard Posner affirmed lower court decisions that determined state laws barring same-sex couples from marriage violate the Fourteenth Amendment to the U.S. Constitution.
“Our pair of cases is rich in detail but ultimately straightforward to decide,” Posner writes. “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 undertakes considerable effort to deconstruct arguments made by state attorneys that bans on same-sex marriage are necessary for procreation. Instead, Posner says the policy harms children.
“The argument that the states press hardest in defense of their prohibition of same-sex marriage is that the only reason government encourages marriage is to induce heterosexuals to marry so that there will be fewer ‘accidental births,’ which when they occur outside of marriage often lead to abandonment of the child to the mother (unaided by the father) or to foster care,” Posner writes. “Overlooked by this argument is that many of those abandoned children are adopted by homosexual couples, and those children would be better off both emotionally and economically if their adoptive parents were married.”
At one point, Posner takes issue with claims made by Indiana that its ban on same-sex marriage is necessary to create an appropriate environment to raise children, saying that argument amounts to saying marriage is only for straight couples because they “tend to be sexually irresponsible, producing unwanted children by the carload.”
“Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry,” Posner continues. “Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”
Posner also rejects the notion that laws barring same-sex marriage fail to meet constitutional standards only if subjected to heightened scrutiny, or a greater assumption they’re unconstitutional, saying instead the bans fail rational basis review.
Suzanne Goldberg, co-director of Columbia University’s Center for Gender & Sexuality Law, said the decision “methodically takes down every argument made against marriage equality for same-sex couples.”
“This opinion, like those of the four other circuits to strike down marriage bans, makes clear that the U.S. Constitution does not tolerate this explicit denial of basic rights to gay and lesbian couples,” Goldberg said. “It is a terrifically strong, sharp ruling, which is characteristic of Judge Posner.”
A Reagan appointee, Posner is the same judge who gained notoriety in the blogosphere following his aggressive questioning during oral arguments of state attorneys general who were defending bans on same-sex marriage in court. Joining Posner in striking down the laws are Ann Claire Williams, a Clinton appointee; and David Hamilton, an Obama appointee.
No explicit stay is included in the 40-page decision. The decision will go into effect in 21 days when the mandate is issued, unless the defendants seek a stay.
Indiana Attorney General Greg Zoeller affirmed in a statement he would seek a stay on the ruling from the U.S. Supreme Court.
“It seems clear that a final resolution of the constitutional issues involving states’ authority over their marriage licenses will need a decision from our nation’s highest court,” Zoeller said. “Since the Supreme Court has already issued stay orders in two Circuit decisions, it seems appropriate that today’s decision also be stayed. Hopefully, for the interests of everyone on both sides of these cases, the Supreme Court will make a ruling sooner rather than later.”
Now that the court has issued the ruling, Wisconsin Attorney General J.B. Van Hollen and Zoeller can either appeal the decision to the full U.S. Seventh Circuit Court of Appeals or to the Supreme Court. Litigation seeking marriage equality in Utah, Oklahoma and Virginia has already been appealed to the Supreme Court.
Dana Breuck, a spokesperson for the Wisconsin attorney general, affirmed that her state would appeal the decision to the Supreme Court as opposed to seeking a rehearing before the full Seventh Circuit.
“The Attorney General has always believed that this case will ultimately be decided by the United States Supreme Court,” Breuck said.
It wasn’t immediately clear whether Indiana would take the same path as Wisconsin in handling the appeal.
Sen. Tammy Baldwin (D-Wis.), the only out lesbian in the U.S. Senate, praised the decision, calling it an affirmation that laws against same-sex marriage violate Wisconsin values.
“It is simply wrong for Governor [Scott] Walker and Attorney General Van Hollen to continue to defend discrimination and with the unanimous rejection of their position by another federal court, it is long past time for them to stop standing in the way of freedom, fairness and equality for all Wisconsinites,” Baldwin said. “Love is love, family is family, and discriminating against anyone’s love, against anyone’s family, is not only wrong, it is unconstitutional. It is now time for us to keep our promise to pass on to the next generation a Wisconsin that is more equal, not less equal.”