Indiana’s assertion that preventing same-sex marriage encourages responsible procreation among heterosexuals was unequivocally rejected in a blistering opinion from the 7th Circuit Court of Appeals, which said the state’s argument could not be taken seriously.
Nine days after oral arguments were held in three same-sex marriage lawsuits from Indiana and one from Wisconsin, the appellate court issued a unanimous opinion that found the states’ prohibitions on marriage of gay or lesbian couples violated the Equal Protection Clause of the 14th Amendment.
“The challenged law discriminates against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction – that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended – is so full of holes that it cannot be taken seriously,” Judge Richard Posner wrote for the panel.
Three marriage lawsuits from Indiana – Marilyn Rae Baskin v. Penny Bogan, 14-2386, Midori Fujii v. Commissioner of the Indiana State Department of Health, 14-2387, and Pamela Lee v. Brian Abbott, 14-2388 – were consolidated by the 7th Circuit. The court wrote one opinion for those three challenges and the single marriage lawsuit from Wisconsin, Virginia Wolf, et al. v. Scott Walker, et al., 14-2526.
The judges focused solely on equal protection and did not address the due process argument the plaintiffs made. Posner wrote the equal protection issue provided compelling grounds to explore so that the court did not have to consider the plaintiffs’ argument that marriage is a fundamental right.
“The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases,” Posner wrote.
Considering the Indiana cases, Posner’s opinion reflected his questions to the state’s attorneys during oral arguments about why Indiana saw fit to allow same-sex couples to adopt children but did not allow these couples the benefit of marriage. He characterized gays and lesbians as the “most stigmatized, misunderstood, and discriminated-against minorities in the history of the world,” and said the harm they and their children experience by being denied the right to marry is considerable.
Posner dismissed Indiana’s responsible procreation reasoning, finding the argument falters because the state does allow infertile couples and first cousins to marry. In addition, the judge ripped the state’s stance that opposite-sex couples give very little thought during intimacy as to whether a baby will be created.
“In other words, Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents – model citizens really – so have no need for marriage,” Posner wrote. “Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”