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Judges blast Indiana, Wisconsin gay marriage bans

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Federal appeals judges bristled 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.

As the legal skirmish 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 hoping to get a spot in the hearing room.

Attorneys general in both states are trying to reinstate bans that were ruled unconstitutional in June. The outcome of the case also could directly affect hundreds of couples who were married after federal judges overturned the bans but before their rulings were put on hold pending appeal.

Gay marriage is currently legal in 19 states as well as the District of Columbia, and momentum is building for more states to recognize it. Advocates have won more than 20 court victories around the country since the U.S. Supreme Court struck down a portion of the Defense of Marriage Act that prohibited the federal government from recognizing same-sex marriage in 2013.

Judge Richard Posner, who was appointed by President Ronald Reagan, was dismissive 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," Posner said. Prohibition of same sex marriage, he said, is "a tradition of hate ... and savage discrimination."

Posner frequently cut off Indiana Solicitor General Thomas Fisher, just moments into his presentation and chided him to answer his questions.

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

"What horrible stuff," Posner said. What benefits to society in barring gay marriage, he asked, "outweighs that kind of damage to children?"

The answer has to do with "procreation," Fisher answered.

"All this is a reflection of biology," Fisher said. "Men and women make babies, same-sex couples do not... we have to have a mechanism to regulate that, and marriage is that mechanism."

Some couples whose marriages are in limbo lined up outside the 25th-floor courtroom as early as 5 a.m. Among them was Ruth Morrison, a retired Indianapolis Fire Department battalion chief. She noted 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.

Lawyers representing both states, along with attorneys for the American Civil Liberties Union and Lambda Legal, a national group working for gay rights, were allotted 20 minutes each to argue their case.

Besides Posner, the judges who heard the case were Ann Claire Williams, a Bill Clinton appointee, and David Hamilton, appointed by President Barack Obama. It's unclear when the court might issue a ruling.

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 raise similar arguments on behalf of several gay and lesbian plaintiffs, contending that the bans violate the U.S. Constitution's equal protection guarantee.

Van Hollen noted that Wisconsin has traditionally defined marriage as a union between a man and woman. Zoeller has maintained that his state has a legitimate interest in promoting traditional marriage as a means of encouraging environments where biological parents raise their children.

The ACLU and Lambda Legal have essentially reiterated their equal protection arguments in appeals court filings, arguing that the bans deny gay couples state and federal legal protections and benefits that married straight couples enjoy.

"The freedom to marry is a core aspect of personal liberty for all Americans," the ACLU said in its briefs.

There was some levity during the hearing. As Samuelson struggled to offer a specific reason for how gay marriage bans benefit society, he suddenly noted a yellow courtroom light signaling his allotted time was up.

"It won't save you," Williams told him, prompting laughter in court.

Samuleson smiled, and said: "it was worth a try."

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  1. I will continue to pray that God keeps giving you the strength and courage to keep fighting for what is right and just so you are aware, you are an inspiration to those that are feeling weak and helpless as they are trying to figure out why evil keeps winning. God Bless.....

  2. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  3. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  4. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  5. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

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