CHICAGO — A three-judge panel of the U.S. Seventh Circuit Court of Appeals on Tuesday skewered state attorneys defending bans on same-sex marriage in Wisconsin and Indiana.
The judges who heard the lawsuits — one seeking to overturn the ban on same-sex marriage in Wisconsin, the other in Indiana — consisted of Richard Posner, a Reagan appointee; Ann Claire Williams, a Clinton appointee; and David Hamilton, an Obama appointee.
Based on the skepticism these judges expressed regarding marriage bans in these states, the panel seems headed toward deciding 3-0 in favor of marriage equality.
Posner was most aggressive in the questioning of attorneys defending bans on same-sex marriage. The judge asked Indiana Solicitor General Thomas Fisher repeatedly why the state would want children with same-sex parents to be worse off than children with opposite-sex parents, then grew frustrated when the attorney could not provide a satisfactory answer.
When the attorney mentioned that opposite-sex marriage enables procreation because a “fleeting moment of passion” leads to the creation of children, Posner asked why sterile opposite-sex couples should be allowed to wed.
Posner was similarly frustrated with Wisconsin Assistant Attorney General Timothy Samuelson when the lawyer couldn’t answer why allowing same-sex couples to wed might have a negative impact other than by observing the institution of no-fault divorce led to an increase in the dissolution of marriages.
When Samuelson said he wasn’t prepared for the question and could respond later in a brief, Posner retorted, “How can you brief it, if you don’t know anything about it?”
Twice during the arguments, Posner cited a friend-of-the-court brief from the LGBT group known as the Family Equality Council, pointing out the harms faced by children with same-sex parents because their parents don’t have access to marriage.
The judge brought up a statistic that between 200,000 and 250,000 children are without guardians and eligible for adoption. Speaking later of same-sex marriage during the arguments, Posner said, “We think, or at least I think, it’s good for the kids.”
During one of the exchanges between Posner and Fisher, Williams jumped in, saying the attorney didn’t seem like he was going to answer the questions. She suggested her own views that banning same-sex marriage is problematic for children.
Williams dismissed the notion children would be worse off with same-sex parents because those couples “are people who want to have children,” unlike opposite-sex couples who may bear children without intending to do so.
The judge on the panel with the most even-handed approach to the questioning was Hamilton, although he too indicated he was gravitating toward ruling against marriage bans.
“It seems to me that we’re in the realm of heightened scrutiny based on sex discrimination,” Hamilton said.
Countering arguments made by Wisconsin that banning same-sex marriage enables the birth of children into stable families, Hamilton brought up statistics showing that the number of unwed births in the state hasn’t improved after same-sex couples were constitutionally barred from marriage in 2006.
If the the goal of the ban is increase the number of children born into wedlock, Williams said the law is “unsuccessful policy.”
The lawsuit seeking marriage equality in Wisconsin, Wolf v. Walker, was filed by the American Civil Liberties Union. The lawsuit seeking marriage equality in Indiana is the consolidated case of Baskin et al v. Bogan. The cases that were combined into that lawsuit were filed by private attorneys, the ACLU, ACLU of Indiana and the LGBT group Lambda Legal.
In each of these cases, judges at the district court level found that the respective bans on same-sex marriage they were challenging are unconstitutional, but the state elected to appeal those decisions.
Representing the views of Indiana, Fisher said he had three main points in defending the state’s ban on same-sex marriage: the 1972 case of Baker v. Nelson still controls on marriage lawsuits; plaintiffs admit to having no limiting principle in their arguments against the law; and there’s no grounds for inferring animus in the passage marriage bans.
When Posner asked if children benefit by having married parents — whether opposite-sex or same-sex — Fisher replied “undoubtedly,” but added linking marriage rights to parental rights would open the door to “plural marriages.”
“The legislature has an understanding of marriage that it has decided to preserve,” Fisher said.
Samuelson said Wisconsin’s same-sex marriage ban is constitutional because it has the effect of putting on the pause button to determine the effect of same-sex marriage before allowing it in the state.
“It’s our position that with rapidly transitioning social norms, the reasonable, prudent path” is to act cautiously, Samuelson said.A common theme among attorneys representing plaintiff same-sex couples in lawsuits was that the U.S. Supreme Court’s decision against the Defense of Marriage Act compelled the court to strike down bans on same-sex marriage.
The attorney arguing against the marriage ban in Wisconsin was James Esseks, director of the ACLU’s LGBT project, who drew a comparison between the pending case and the DOMA decision.
“Both measures are intended to exclude same-sex couples from the institution of marriage or the recognition of their marriage,” Esseks said.
Representing plaintiff couples in the Indiana case were Camilla Taylor, Lambda Legal’s marriage project director, and Kenneth Falk, legal director of the ACLU of Indiana.
Taylor made a similar argument that the DOMA decision compels the court to strike down the ban on same-sex marriage in Indiana, saying it guarantees the ability to “act autonomously.”
“By denying the right to marry, the state has done exactly what was denied in Windsor,” Taylor said.
Asked to respond to the state’s claim that plaintiffs are seeking relief without limitations, Taylor responded that only the thing they’re seeking is the “elimination of the gender-entry barrier” to marriage.
Falk sought to dispute concerns expressed by the state that legalizing same-sex marriage would lead to polygamy, saying a marriage with three or four people isn’t going to look like the modern understanding of marriage. But he insisted on the similarities of unions between same-sex couples and different-sex couples.
“A same-sex marriage and an opposite-sex marriage are the same thing,” Falk said.
Now that oral arguments in the cases have taken place, justices are expected to render their ruling within one or two months. In the likely event those decisions are appealed to the U.S. Supreme Court, the Wisconsin and Indiana cases could be the ones justices elect to take up to make a nationwide ruling on the issue of marriage equality by the middle of next year.
In the anticipation of that ruling, Falk maintained lower courts should recognize developing case law following the Baker decision decades ago, saying that path leads to a determination that bans on same-sex marriage are unconstitutional.
“I don’t think any of us have any illusion about the fact that the Supreme Court is eventually going to hear and decide a marriage case,” Falk said. “In the meantime, as every single court that has faced the question has held, I think it’s incumbent on lower courts to recognize the arc of legal history, if not actual history, has long passed Baker by.”