Appeals judges blast same-sex marriage bans in two states

Indiana, Wisconsin attorneys general argue in support

Share with others:

Print Email Read Later

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


You have 2 remaining free articles this month

Try unlimited digital access

If you are an existing subscriber,
link your account for free access. Start here

You’ve reached the limit of free articles this month.

To continue unlimited reading

If you are an existing subscriber,
link your account for free access. Start here