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,”

Judges chide state lawyers over gay marriage bans

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

ACLU attorney Ken Faulk, center, talks to reporters surrounded by plaintiffs and supporters of gay marriage, after Faulk participated in a hearing before the 7th U.S. Circuit Court of Appeals on the challenges to Indiana and Wisconsin's gay marriage ban Tuesday, Aug. 26, 2014, in Chicago. (AP Photo/Charles Rex Arbogast)

ACLU attorney Ken Faulk, center, talks to reporters surrounded by plaintiffs and supporters of gay marriage, after Faulk participated in a hearing before the 7th U.S. Circuit Court of Appeals on the challenges to Indiana and Wisconsin’s gay marriage ban Tuesday, Aug. 26, 2014, in Chicago. (AP Photo/Charles Rex Arbogast)

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 the laws may be in trouble – at least at this step in the legal process.

Richard Posner, who was appointed by President Ronald Reagan in 1981, 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 gay 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, 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.

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

The Supreme Court has yet to take up a case, but Utah and Oklahoma’s cases were appealed to the high court and Virginia’s attorney general also 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 is expected soon in Texas.

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.

At one point, Posner ran through a list of psychological strains the children of unmarried same-sex couples suffered, including having to struggle to grasp why their schoolmates’ parents were married and theirs weren’t.

“What horrible stuff,” Posner said. What benefit to society in barring gay marriage, he asked, outweighs that kind of harm to children?

“All this is a reflection of biology,” 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.”

Samuelson echoed that, telling the hearing that regulating marriage – including by encouraging men and women to marry – was part of a concerted Wisconsin 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.

While the judges seemed to push defenders of the bans the hardest, they also pressed the side arguing for gay marriage to say just where they themselves would draw the line between who could and couldn’t marry.

Would they argue in favor of polygamy on similar grounds, by pointing to the emotional toll on children in families with multiple mothers or fathers, asked Hamilton, a President Barack Obama appointee.

“If you have two people, it’s going to look like a marriage,” said attorney 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,” Morrison, wearing a fire department uniform, said during a rally ahead of the hearing Monday night.

A voter-approved constitutional amendment bans gay 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 Samuelson struggled to offer a specific reason for how gay 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.

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

Source:  Associated Press, “Judges chide state lawyers over gay marriage bans,” by Micahel Tarm, August 26, 2014

Marriage Discrimination Struck Down Again in Indiana

The Honorable Richard Young — the U.S. district judge in Indiana who struck down that state’s ban on same-sex marriage in June — has done it again.

Indiana State Flag

This afternoon, Judge Young sided with the plaintiffs in Bowling v. Pence, the last remaining same-sex marriage case in Indiana. The plaintiffs sued to force the state to recognize their legal same-sex marriages performed elsewhere.

Young ordered the state to stop enforcing all Indiana laws preventing same-sex couples from equal treatment in marriage, allow married same-sex couples to file joint tax returns, and provide the same benefits and services to married same-sex couples as it does to married opposite-sex couples.

Young also reinstated Mike Pence, the state’s Republican governor, as a defendant in the case after previously removing him. Judge Young notes that he initially took Pence off the case because of the governor’s repeated claims that he lacks the authority to control the enforcement of Indiana’s ban on same-sex marriage recognition, and because no law existed explicitly granting the governor such authority.

However, Judge Young writes, actions taken by Pence after the initial ruling reveal that the governor’s position was a “bold misrepresentation”: “Since that time, the Governor issued memoranda, through his attorney, and did what he claimed he could not do by directing executive agencies on how to proceed in enforcing the law.”

These actions, Young says, prove that Pence is indeed a proper party to the case.

Judge Young stayed today’s order until the Seventh Circuit Court of Appeals rules in the case, or in any of the other Indiana marriage equality cases.

To read a copy of the order, please Bowling v. Pence District Court ruling.

Source: Bilerico,“Marriage Discrimination Struck Down Again in Indiana,” Filed By John M. Becker | August 19, 2014 6:45 PM

Indiana Marriage Ban Struck Down by Federal Judge

Today U.S. District Court Judge Richard L. Young ruled against Indiana’s statute banning marriage equality, making the Hoosier State the latest to see such a ban struck down in court since the U.S. Supreme Court handed down its historic marriage rulings last June.  In Baskin v. Bogan, Lambda Legal and local private counsel sued the state on behalf of same-sex couples who argue that Indiana’s ban on marriage equality violates the U.S. Constitution.  In his ruling, Judge Young wrote, “In time, Americans will look at the marriage of couples such as Plaintiffs, and refer to it simply as a marriage – not a same-sex marriage. These couples, when gender and sexual orientation are taken away, are in all respects like the family down the street. The Constitution demands that we treat them as such.”

“Today’s ruling is further proof that bans on marriage equality like the one struck down in Indiana today cannot withstand judicial review,” said Human Rights Campaign (HRC) legal director Sarah Warbelow.  “Where you live should never determine whether or not you can marry the person you love, and today we congratulate the plaintiffs and their attorneys with Lambda Legal, the law office of Barbara Baird, and Kirkland & Ellis LLP for bringing America one step closer to nationwide marriage equality.”

The judge did not immediately issue a stay on his ruling, and also instructed all state agencies to provide marital benefits to same-sex couples.

Recent poll results from the Washington Post and ABC News show that 50 percent of Americans believe that gay and lesbian couples have a constitutional right to marry guaranteed by the U.S. Constitution’s Equal Protection clause. Additionally, 56 percent of Americans and 77 percent of those under the age of thirty support marriage rights for same-sex couples.  Today’s results are the latest in an ever-expanding trend showing Americans moving inexorably in the direction of supporting equality for same-sex couples.

There are over 70 court cases challenging discriminatory marriage bans across the country in 30 states and Puerto Rico.  So far five federal appeals courts are presiding over 11 marriage equality cases over the coming weeks and months. The Sixth Circuit holds the distinction of being the only federal appeals court to date that will consider marriage cases from all states within its jurisdiction.  Since the U.S. Supreme Court’s historic marriage rulings last year, no state marriage ban has survived a federal court challenge.

Same-sex couples can legally marry in nineteen states and the District of Columbia, while 31 states have a law or constitutional amendment restricting marriage to the union of one man and one woman.  Learn more about this and other marriage equality cases at

U.S. Court Seems Split on Utah Gay Marriage Ban

Plaintiffs on Utah’s Ban on Gay Marriage Two of the plaintiffs in a case challenging Utah’s ban on gay marriage, Moudi Sbeity and Derek Kitchen, discussed why they were pursuing the lawsuit. Photo: Jim Auley, The New York Times

Plaintiffs on Utah’s Ban on Gay Marriage
Two of the plaintiffs in a case challenging Utah’s ban on gay marriage, Moudi Sbeity and Derek Kitchen, discussed why they were pursuing the lawsuit.
Photo: Jim Auley, The New York Times

DENVER — The push for same-sex marriage, which has celebrated victory after victory in courtrooms across the country, entered an uncertain stage on Thursday as a federal appeals court appeared divided about whether the socially conservative state of Utah could limit marriage to a man and a woman.

In an hour of arguments inside a packed courtroom, three judges from the Federal Court of Appeals for the 10th Circuit sparred with lawyers about how such bans affected the children of same-sex parents and whether preventing gay couples from marrying actually did anything to promote or strengthen heterosexual unions and families.

Judge Paul J. Kelly, who was nominated by the elder President Bush, appeared more deferential to Utah’s voters and its legislature while Judge Carlos F. Lucero, a Clinton appointee, asked pointed questions about whether Utah was stigmatizing children of gay couples. Legal observers said the deciding vote appeared to belong to Judge Jerome A. Holmes, who was nominated by President George W. Bush, and lofted tough questions at both sides.

“Why does it matter who’s claiming the right?” Judge Holmes asked a lawyer representing Utah. “It’s a fundamental right, and why does it matter the participants in that enterprise? Why does it matter?”

Thursday’s arguments signaled the first time an appeals court had considered the issue since the Supreme Court handed two major victories to gay-rights supporters last summer, striking down a law that denied federal benefits to same-sex couples and clearing the way for same-sex marriages across California.

It was a day freighted with emotion for gay-rights supporters and same-sex couples in Utah. Dozens flew to Denver from Utah to attend the arguments, lining up early Thursday morning for a seat in the courtroom. A conservative state lawmaker was one of a handful of supporters of the ban to attend the hearing. “Our lives are on the line here,” said Derek Kitchen, the plaintiff who lent his last name to the case — Kitchen v. Herbert. Gary R. Herbert is Utah’s Republican governor.

As Mr. Kitchen and the other plaintiffs chatted and exchanged reassuring pats on the shoulder in the courtroom, they were approached by Utah’s attorney general, Sean Reyes, whose office has taken the lead role in defending the same-sex marriage ban. Shaking hands and greeting the plaintiffs, Mr. Reyes crouched down and told them: “I’m sorry that we’re causing you pain. Sometime after the case is over, I hope we can sit down.”

After the hearing, Mr. Reyes said he had told the plaintiffs that the legal confrontation was not personal, and that he knew that the plaintiffs’ families were as important to them as his own was to him. But he said it was unclear what would happen to the unions and benefits of Utah’s newly married same-sex couples if the state prevailed in its appeals. Utah has previously raised the possibility that those marriages could be dissolved.

Separately, in Indiana on Thursday, a federal judge ruled that the state must, for now, recognize the same-sex marriage of a woman who is terminally ill. Nikole Quasney and Amy Sandler have two children and joined one of five lawsuits challenging the state’s ban on same-sex marriage last month, citing the need to have their relationship legally recognized in order to access benefits for surviving family members. Ms. Quasney received a diagnosis of ovarian cancer in 2009; the couple married in Massachusetts last year.

Source:  The New York Times, “U.S. Court Seems Split on Utah Gay Marriage Ban,” by Jack Healy, April 10, 2014