Court: Same-sex marriage bans in Indiana, Wisconsin unconstitutional

A federal appeals court in Chicago has upheld lower court decisions that same-sex marriage bans in Indiana and Wisconsin are unconstitutional.

The swift decision comes just little more than a week after the 7th Circuit U.S. Court of Appeals heard oral arguments at which lawyers for the two states often found themselves on the defensive amid tough questioning from the three-judge panel.

In a 40-page unanimous opinion, Judge Richard Posner wrote that the key arguments supporting the ban — that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children — is “so full of holes that it cannot be taken seriously.”

“To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents,” Posner wrote. “The discrimination against same-sex couples is irrational, and therefore unconstitutional.”

Officials in Indiana and Wisconsin – which were among a dwindling number of states that do not recognize gay marriage — had appealed lower federal court decisions that said the bans were unconstitutional and should be lifted. Their arguments turned largely on the needs of their states to regulate marriage as an institution, one linked directly to the ability to have children.

In Illinois, gay marriage has been legal since June.

In a statement, Paul Castillo, an attorney for Lambda Legal who represented the Indiana plaintiff, said the court “has affirmed the love and commitment our plaintiffs and thousands of same-sex couples in Indiana and Wisconsin have for each other.”

“Today’s ruling adds to the incredible legal momentum for marriage equality we are seeing in courts across the country; it is a joyous day for freedom and justice in the Midwest,” Castillo said.

Wisconsin’s attorney general issued a statement saying it would appeal the ruling and noting that no changes would take place while the issue remains in litigation.

“Attorney General Van Hollen has always believed that this case will ultimately be decided by the United States Supreme Court,” the statement said. “The stay remains in effect until all appeals have been concluded.”

In his opinion, Posner urged the lawyers for the states to “draw up a plan of compliance and submit it” to the district judges for approval.

The strongly worded opinion lays out the historical discrimination against homosexuals in no uncertain terms, stating they were among the most “misunderstood, and discriminated-against minorities in the history of the world.”

The harm to homosexuals and their adopted children of being denied the right to marry is “considerable,” Posner said, and is a “source of continuing pain to the homosexual community.”

“Marriage confers respectability on a sexual relationship,” Posner wrote. “To exclude a couple from marriage is thus to deny it a coveted status.”

Known for his acerbic wit, Posner had particularly harsh words for the argument made by attorneys for Indiana that marriage is intended only for procreation and therefore only heterosexuals should benefit from the perks of matrimony, such as filing taxes jointly. The judge noted that infertile heterosexuals were free to marry – even first cousins.

“Why are they allowed to reap the benefits accorded marriages of fertile couples, and homosexuals are not?” Posner said. He said Indiana had “thus invented an insidious form of discrimination: favoring first cousins, provided they are not of the same sex, over homosexuals.”

Posner also said Indiana’s argument that marriage was a way to reign in sexual irresponsibility was completely backward.

“Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry,” Posner wrote. “Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”

Source: Chicago Tribune, “Court: Same-sex marriage bans in Indiana, Wisconsin unconstitutional,”

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