Breaking: Court Of Appeals Unanimously Affirms Same-Sex Marriage Bans Are Unconstitutional In Two States


A federal court of appeals has ruled that same-sex marriage bans in Wisconsin and Indiana indeed are unconstitutional, affirming lower court decisions. 

The 7th Circuit Court of Appeals has just handed down a ruling that finds same-sex marriage bans in Wisconsin and Indiana are unconstitutional. The ruling affirms lower court decisions of U.S. District Judge Barbara Crabb in Wolf v. Walker, and U.S. District Court Judge Young's in Baskin vs. Bogan, Fujii v. State of Indiana, and Lee v. Pence.

Those cases were before a 7th Circuit three-judge panel just nine days ago, and were decided unanimously today.

In a scathing rebuke to the stes, Posner wrote that the idea "that same-sex marriage will harm heterosexual marriage or children" is "unsupported conjecture" and insufficient "to justify discrimi-nation on the basis of sexual orientation." He added that "the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjec-tural; they are totally implausible."

Posner also noted that the "states' concern with the problem of unwanted children is valid and important, but their solution is not 'tailored' to the problem, because by denying marital rights to same-sex couples it reduces the incentive of such couples to adopt unwanted children and impairs the welfare of those children who are adopted by such couples."

He also thrashed Wisconsin's argument, "that the ban on same-sex marriage is the outcome of a democratic process—the enactment of a constitutional ban by popular vote."

But homosexuals are only a small part of the state's population—2.8 percent, we said, grouping transgendered and bisexual persons with homosexuals. Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.

Posner also struck down Wisconsin's claim "that 'homosexuals are politically powerful out of proportion to their numbers.' No evidence is presented by the state to support this contention."

Chris Geidner at Buzzfeed points to one passage in particular from today's ruling, written by Judge Richard Posner.

"Our pair of cases is rich in detail but ultimately straightforward to decide," wrote Posner, who had challenged a state attorney by insisting the bans were brought as a result of anti-gay "hate."

"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."

Geidner adds:

Posner, who was rough in his questioning of the lawyers for both states at oral arguments, concludes: "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."

The 40-page decision can be read here:


Image: The first same-sex couple to marry in Indiana, Jake Miller and Craig Bowen. Photo via Hoosiers Unite for Marriage on Facebook

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