7th Circuit: Marriage law is unconstitutional

Indiana’s assertion that preventing same-sex marriage encourages responsible procreation among heterosexuals was unequivocally rejected Sept. 4 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 in three same-sex marriage lawsuits from Indiana and one from Wisconsin, the appellate court issued a unanimous opinion that the states’ prohibitions on marriage between gays or lesbians violate the Equal Protection Clause of the 14th Amendment.

“The challenged laws discriminate 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.

Posner-Richard-mug Posner

The Indiana cases – Marilyn Rae Baskin, et al. v. Penny Bogan, et al., 14-2386; Midori Fujii, et al. v. Commissioner of the Indiana State Department of Health, et al., 14-2387; and Pamela Lee, et al. v. Brian Abbott, et al., 14-2388 – were consolidated by the 7th Circuit. The court wrote one opinion for those challenges and the single marriage lawsuit from Wisconsin, Virginia Wolf, et al. v. Scott Walker, et al., 14-2526.

Indiana University Maurer School of Law Professor Dawn Johnsen was struck by the 7th Circuit’s rejection of originalism, the idea that the U.S. Constitution is limited to what the framers intended.

Having worked in the Clinton Administration when the federal Defense of Marriage Act was passed in 1996, Johnsen was among the attorneys who advised the president on the constitutionality of the measure. At that time, it was deemed as not violating constitutional protections.

The bigotry and prejudice against gays and lesbians displayed when DOMA was enacted have increasingly dissipated as people have become educated and, Johnsen said, improved their views. Posner’s opinion reflects how much society has moved toward accepting same-sex marriage by interpreting the Constitution as providing protection for same-sex couples.

“This issue shows how much the courts have rejected limiting the Constitution to original intent,” Johnsen said.

Focused solely on Equal Protection, the appellate court did not address the due process argument the plaintiffs also 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.

The 7th Circuit examined the equal protection issue through a costs-and-benefits analysis which, as Posner noted, is not the conventional approach. He argued the different approach was merited because the harms caused by the marriage statute did not formally enter into traditional review.

Deborah Widiss, associate professor at IU Maurer, said weighing the costs and benefits gives a court more flexibility in considering equal protection arguments than the tiered scrutiny approach. The question now is if the use of the costs-and-benefits analysis will set a precedent within the 7th Circuit.

Other Circuit courts have focused their opinions on how the Due Process Clause applies to same-sex marriage. Acknowledging the expectation that the U.S. Supreme Court will take up a same-sex marriage case in the next year or two, Widiss said the decision from the Chicago panel combined with other Circuits’ decisions will provide the high court a full briefing on the legal arguments.

Posner dismissed Indiana’s responsible procreation reasoning, finding the argument falters because the state allows 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.”•

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