Appeals judges blast same-sex marriage bans in two states

Indiana, Wisconsin attorneys general argue in support


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CHICAGO — Fed­eral ap­peals judges bris­tled on Tues­day at ar­gu­ments de­fend­ing same-sex mar­riage bans in In­di­ana and Wis­con­sin, with one Re­pub­li­can ap­poin­tee com­par­ing them to now-de­funct laws that once-out­lawed wed­dings be­tween blacks and whites.

As the le­gal skir­mish in the United States over same-sex mar­riage shifted to the three-judge panel of the 7th U.S. Cir­cuit Court of Ap­peals in Chi­cago, more than 200 peo­ple lined up hours be­fore to en­sure they got a seat at the much-an­tic­i­pated hear­ing.

While judges of­ten play devil’s ad­vo­cate dur­ing oral ar­gu­ments, the panel’s of­ten-blis­ter­ing ques­tions for the de­fend­ers of the same-sex mar­riage bans could be a sig­nal that the laws may be in trou­ble, at least at this step in the le­gal pro­cess.

Judge Rich­ard Pos­ner, ap­pointed in 1981 by Pres­i­dent Ron­ald Rea­gan, hit the back­ers of the ban the hard­est. He balked when Wis­con­sin As­sis­tant At­tor­ney Gen­eral Tim­o­thy Samuel­son re­peat­edly pointed to “tra­di­tion” as the un­der­ly­ing jus­ti­fi­ca­tion for bar­ring same-sex mar­riage.

“It was tra­di­tion to not al­low blacks and whites to marry — a tra­di­tion that got swept away,” the 75-year-old judge said. Pro­hi­bi­tion of same-sex mar­riage, Judge Pos­ner said, de­rives from “a tra­di­tion of hate ... and sav­age dis­crim­i­na­tion” of ho­mo­sex­u­als.

At­tor­neys gen­eral in both states asked the ap­pel­late court to per­ma­nently re­store the bans, which were ruled un­con­sti­tu­tional in June. Its rul­ing could af­fect hun­dreds of cou­ples who mar­ried af­ter lower courts tossed the bans and be­fore those rul­ings were stayed pend­ing the Chi­cago ap­peal.

Same-sex mar­riage is le­gal in 19 states as well as the Dis­trict of Co­lum­bia, and ad­vo­cates have won more than 20 court vic­to­ries across the na­tion since the U.S. Supreme Court or­dered the fed­eral gov­ern­ment to rec­og­nize state-sanc­tioned same-sex mar­riages last year.

The Supreme Court has yet to take up a case, but Utah’s and Okla­homa’s cases were ap­pealed to the high court, and Vir­ginia’s at­tor­ney gen­eral also has asked the justices to weigh in. Ap­peals court rul­ings are pend­ing for Ken­tucky, Mich­i­gan, Ohio and Ten­nes­see, while ap­pel­late court hear­ings are sched­uled next month for Hawaii, Ore­gon, Idaho, Ne­vada, and one is ex­pected soon in Texas.

Judge Pos­ner, who has a rep­u­ta­tion for mak­ing law­yers be­fore him squirm, cut off In­di­ana So­lic­i­tor Gen­eral Tho­mas Fisher just mo­ments into his pre­sen­ta­tion and fre­quently chided him to an­swer his ques­tions.

“All this is a re­flec­tion of bi­ol­ogy,” Mr. Fisher an­swered. “Men and women make ba­bies, same-sex cou­ples do not. ... We have to have a mech­a­nism to reg­u­late that, and mar­riage is that mech­a­nism.”

Wis­con­sin’s Mr. Samuel­son echoed that, tell­ing the hear­ing that reg­u­lat­ing mar­riage was part of a con­certed state pol­icy to re­duce num­bers of chil­dren born out of wed­lock.

“I as­sume you know how that has been work­ing out in prac­tice?” Judge David Ham­il­ton re­sponded, cit­ing fig­ures that births to sin­gle women from 1990 to 2009 rose 53 per­cent in Wis­con­sin and 68 per­cent in In­di­ana.

The judges also pressed the side ar­gu­ing for same-sex mar­riage to say just where they them­selves would draw the line about who could and couldn’t marry.

Judge Ham­il­ton, an ap­poin­tee of Pres­i­dent Barack Obama, asked if they would ar­gue in fa­vor of po­lyg­amy on sim­i­lar grounds, by point­ing to the emo­tional toll on chil­dren in fam­i­lies with mul­ti­ple moth­ers or fathers?

“If you have two peo­ple, it’s go­ing to look like a mar­riage,” said Ken­neth Falk of the Amer­i­can Civil Lib­er­ties Union of In­di­ana. “If you have three or four, it doesn’t. ... There’s no slip­pery slope.”

Among those fol­low­ing the ar­gu­ments in court was plain­tiff Ruth Mor­ri­son, a re­tired In­di­a­nap­o­lis Fire Depart­ment bat­tal­ion chief. She said that be­cause In­di­ana won’t rec­og­nize the woman she mar­ried in an­other state as her wife, she wouldn’t be able to pass on pen­sion and other ben­e­fits if she dies. “Now, In­di­ana tells us our prom­ises are only good if our spouses are of the op­po­site sex,” Ms. Mor­ri­son said dur­ing a rally ahead of the hear­ing Mon­day night.

A voter-ap­proved con­sti­tu­tional amend­ment bans same-sex mar­riage in Wis­con­sin. State law pro­hib­its it in In­di­ana. Nei­ther state rec­og­nizes same-sex mar­riages per­formed else­where.

The law­suits that led to Tues­day’s hear­ing in Chi­cago con­tend that the bans vi­o­late the U.S. Con­sti­tu­tion’s equal pro­tec­tion guar­an­tee.

Despite the se­ri­ous­ness of the hear­ing, there was some lev­ity. At one point, a vis­i­bly un­com­fort­able Mr. Samuel­son strug­gled to of­fer a spe­cific rea­son for how same-sex mar­riage bans ben­e­fit so­ci­ety. He then noted a yel­low court­room light was on, sig­nal­ing his al­lot­ted time was nearly up.

“It won’t save you,” Judge Ann Claire Wil­liams, a Bill Clin­ton ap­poin­tee, told him, prompt­ing laugh­ter in court.

Mr. Sam­ule­son smiled, and said: “It was worth a try.”

indiana - United States - North America - Barack Obama - Bill Clinton - Illinois - Chicago - Wisconsin - Ronald Reagan - Indiana state government - Wisconsin state government - Richard Posner - David Hamilton


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