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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. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

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