A federal appeals court threw out gay-marriage bans in Indiana and Wisconsin, making them the fourth and fifth states since June to lose the battle one step below the U.S. Supreme Court.
The unified ruling, issued today by a Chicago-based three-judge panel, came just nine days after it heard arguments from attorneys for both states seeking reversal of trial-court decisions this year. Wisconsin will follow three other states in appealing, state officials said.
Today’s unanimous opinion is one in a wave of victories for gay couples since the Supreme Court struck down part of the 1996 Defense of Marriage Act limiting federal recognition to heterosexual couples. While the cases are about discrimination against the small homosexual minority in the U.S., the deeper issue surrounds the welfare of American children, the appeals court said.
“More than unsupported conjecture that same-sex marriage will harm heterosexual marriage or children or any other valid and important interest of the state is necessary to justify discrimination based on sexual orientation,” U.S. Circuit Judge Richard A. Posner wrote for the panel.
“The grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural, they are totally implausible,” said Posner, a 1981 appointee of Republican President Ronald Reagan.
The American Civil Liberties Union in Wisconsin applauded the decision. The group had challenged the ban on behalf of eight couples seeking to marry in the state or have their out-of-state unions recognized.
Judi Trampf, one of the plaintiffs, said the decision puts in reach something once thought unattainable for her and her partner of more than 25 years.
“We could never let ourselves imagine it, it wasn’t a reality for us for so many years,” Trampf said in the ACLU’s statement. “Now marriage could -- and should -- be our reality.”
The decision follows earlier 2-1 rulings by federal appeals courts in Denver and Richmond, Virginia, that affirmed the invalidation of gay-marriage bans in Utah, Oklahoma and Virginia.
Lawyers defending those states’ laws, plus Virginia Attorney General Mark Herring, have asked the U.S. Supreme Court to review those cases.
Yesterday, in a rare win for gay marriage opponents, a federal judge in New Orleans upheld Louisiana’s ban, ruling that a state has the right to determine marriage laws.
Michigan, Kentucky
The U.S. Court of Appeals in Cincinnati heard arguments last month and hasn’t ruled on lower-court decisions that struck down gay-marriage bans in Michigan and Kentucky.
An appeals court in San Francisco is scheduled next week to consider cases from Nevada and Idaho. Same-sex marriage is legal in 19 states plus the District of Columbia.
“The attorney general has always believed that this case will ultimately be decided by the United States Supreme Court,” said Dana Brueck, a spokeswoman for Wisconsin Attorney General J.B. Van Hollen.
Indiana Attorney General Greg Zoeller said the state will seek a stay of the court’s ruling pending the Supreme Court’s review.
“Hopefully, for the interests of everyone on both sides of these cases, the Supreme Court will make a ruling sooner rather than later,” Zoeller said in an e-mailed statement.
Joining with Posner in today’s ruling were circuit judges Ann Claire Williams, a 1999 nominee of Democratic President Bill Clinton, and David F. Hamilton, a 2009 appointee of Democratic President Barack Obama.
In a hearing last month, Posner compared Wisconsin’s same-sex marriage ban to a tradition of discriminating against blacks which that he said was based on hate.
Wisconsin Assistant Attorney General Timothy Samuelson rejected the comparison, telling the court that the state was the first in the U.S. to bar discrimination based on sexual orientation in the workplace or in housing.
Posner didn’t raise the issue of hate in the opinion and instead focused on the harm of the ban to the children of homosexuals.
“Marriage confers respectability on a sexual relationship; to exclude a couple from marriage is thus to deny it a coveted status,” Posner wrote.
The states’ arguments that same-sex couples and their children don’t need marriage because those couples can’t produce children “is so full of holes that it cannot be taken seriously,” Posner wrote.
The cases are Baskin v. Bogan, 14-2386, 14-2387 and 14-2388; and Wolf v. Walker, 14-2526, U.S. Court of Appeals, Seventh Circuit (Chicago).
