7th Circuit Strikes Down IN and WI Marriage Bans

In the least surprising news ever, the 7th Circuit Court of Appeals has overturned state laws banning same-sex marriage in Indiana and Wisconsin. Anyone who listened to the oral argument a couple weeks ago knew this was coming after the judges turned the lawyers defending those bans into babbling 1Ls during questioning. The ruling, which you can read here, was written by Judge Richard Posner, a Reagan appointee and conservative legend.

The unanimous decision by the three-judge panel of the U.S. 7th Circuit Court of Appeals in Chicago criticized the justifications both states gave for the bans, several times singling out the argument that marriage between a man and a woman is tradition. There are, the court noted, good and bad traditions.

“Bad traditions that are historical realities such as cannibalism, foot-binding, and suttee, and traditions that from a public-policy standpoint are neither good nor bad — such as trick-or-treating on Halloween,” it said. “Tradition per se therefore cannot be a lawful ground for discrimination-regardless of the age of the tradition.”

Same-sex marriage is legal in 19 states and the District of Columbia. Bans that have been overturned in some other states continue to make their way through the courts. Since last year, the vast majority of federal rulings have declared same-sex marriages bans unconstitutional…

By standards of the 7th circuit, the decision was unusually fast — coming just nine days after oral arguments — suggesting unanimity came easily to the panel.

Judge Richard Posner, an appointee of Repubican President Ronald Reagan in 1981, wrote Thursday’s opinion for the panel. During oral arguments, it was Posner who fired the toughest questions at defenders of the bans, often expressing exasperation at their answers.

The ruling echoes his comments during oral arguments that “hate” underpinned the gay-marriage bans, saying, “Homosexuals are among the most stigmatized misunderstood, and discriminated-against minorities in the history of the world.”…

“If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a harmless anachronism; it is a violation of the equal protection clause,” the opinion says.

Well said. The states say they’re going to appeal to the Supreme Court, but that’s pretty much irrelevant. There are already several cases on appeal.

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  • Alverant

    Except for what happened in Louisiana, this is almost expected. But some states are going to the USSC and I’m unsure about that given how many of the justices think that their religious opinions means it’s OK to oppress others.

  • dmcclean

    If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a harmless anachronism; it is a violation of the equal protection clause,

    Am I the only one who read the part I emphasized as “don’t get any ideas, you uppity atheists, official god talk is still in”?

  • flyv65

    @dmmclean: I took it to mean that no-one has a right to not be offended. I sort of figured that “being offended” was the root of the blasphemy laws…

  • John Pieret

    By standards of the 7th circuit, the decision was unusually fast

    Understatement of the year to date! A month after the oral arguments in a Circuit Court is “unusually fast.” This was “you morons should be ashamed” fast.

  • dogfightwithdogma

    I can only imagine the wailing, howling and gnashing of teeth taking place now among religious conservatives.

    @dmmclean: I don’t know through what intellectual filter you read that passage, but I certainly don’t see anything remotely resembling your interpretation. I think flyv65 has it right.

  • dmcclean

    I think I read it that way because the lack of a right not to be offended is so obvious as to be unworthy of mention. Also I can’t think of any cases where people have challenged traditional laws merely because they were “offended” by them.

    On the flip side, I can think of many occasions on which defenders of bad traditions have employed the canard that their opponents were merely “offended” and should grow thicker skins, nearly endless examples of which can be found in Ed’s archives. As a result, I tend to see such uses of “offended” as something of a code word.

    Do you have suggestions as to what sorts of cases the panel might have been intending to distinguish by use of the phrase “and does them harm beyond just offending them” other than the tradition of “ceremonial deism”? flyv65’s example of blasphemy laws already doesn’t seem to work, because the harm they do to whoever might bring a case is generally imprisonment, not offense; the justification for such laws is offense, that is not the harm they do to opponents.

  • Chiroptera

    John Pieret, #5: This was “you morons should be ashamed” fast.

    Heh.

    With apologies to Berkley Breathed, i would like to see a judge say, “Bailiff, give those nuts a kick in the butt.”

  • whheydt

    I read the decision last night. It’s….interesting. In both what it says, and what it doesn’t. Posner didn’t even address the typical “due process” aspects (and stated that he didn’t need to).

    I think the Slate article (http://www.slate.com/blogs/outward/2014/09/05/judge_richard_posner_s_gay_marriage_opinion_is_witty_moral_and_brilliant.html) is a good take on it. IT also quotes one of the juicier bits…the one ending with “Go figure.” (Yes, Posner actually wrote that in his opinion.)

    On the whole, I suspect Posner wrote his decision well before the oral arguments took place, and then rechecked some web sites (at one point he notes that the sites were current as of 2 Sept.) updated it in a couple places to reflect the content of the oral arguments and got the sign-off from his fellow judges…and then “Boom!”, here is your head on a platter.

    As regards to LA…I want to see what the appellate court says in that case before I get concerned about any effect. Apparently, that judge based a chunk of his ruling (as regards animus) based on what another judge said on the topic, and that decision was, in turn, based on a law review article. The person that wrote the article has said that both judges got it wrong, as have other legal experts that have been asked. So even if the relevant appeals panel covertly agrees with the outcome, they may reverse him for making stupid errors in his analysis.

  • Michael Heath

    The tradition argument is way weaker than what we see here. The fact is, the language in the Constitution is clear and unequivocal:

    No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    It doesn’t say, “except when such deprivations is due to tradition or because conservative Christians discriminate and abuse gay people.

  • https://www.facebook.com/jackbishop Jake Wildstrom

    Well, if Indiana wants to appeal to the Supreme Court, I hope the actual attorney general shows up for their day in court.

    Seriously, I feel bad for poor ol’ Solicitor General Fisher, having this pile of shit fobbed off on him to defend.

  • flyv65

    @dmmclean: “flyv65′s example of blasphemy laws already doesn’t seem to work, because the harm they do to whoever might bring a case is generally imprisonment, not offense; the justification for such laws is offense, that is not the harm they do to opponents.”

    I meant that the blasphemy laws are instituted to protect the delicate sensibilities of the religious from being offended: not that the penalties imposed were only offensive. Sorry, I thought that was clear…

  • John Pieret

    Am I the only one who read the part I emphasized as “don’t get any ideas, you uppity atheists, official god talk is still in”?

    I think dmcclean is at least partially right here. Posner is distancing the denial of substantial rights and privileges (tax, inheritance and medical decision-making rights, among many others) from the right to be free of government preaching. It is not that Posner (or I) think the latter is unimportant, it just means that the denial of SSM involves tangible, empiric damage to people. That puts the denial of those rights and privileges on the next highest plane of constitutional rights.

  • Scientismist

    Of course dmcclean is right that “official god talk is still in,” because it is traditional and any offense that it might engender cannot be said to rise above the level of a simple anachronistic inconvenience. Ceremonial deism is still an important reminder for the public (as SCOTUS Associate Justice Scalia has written — Google “God’s Justice and Ours”), that justice does not grow from rational human thought, but instead springs from the divinely inspired pronouncements of those who wield God’s own Sword of Justice here on earth. That one particular political party is now almost completely devoted to bringing their own warped view of “God’s Justice” to bear upon women and poor people, as well as gays (not to mention international affairs), is not, and must not be allowed to become an openly recognized issue. Just because the irrational roots of one aspect of that project have become so embarrassingly obvious that even Scalia himself has seen it, does not mean that rationalists should get their hopes up.

  • dmcclean

    @12

    I didn’t mean to suggest in any way that the denial of rights to LGBT people is on the same level of injustice as forcing people to say the pledge or giving pride of place to a creche.

    I was criticizing the decision for preemptively disclaiming its logical extension because that extension is unpopular in certain corners. The sentence could have been written dropping the part after “and does them harm” without losing anything except cover for later decisions sticking with other less bad but also unjustifiable traditions.

  • Michael Heath

    Reading the ruling now . . .

    The majority doesn’t even consider the plaintiffs’ argument that the IN and WI bans violated their due process rights. That’s because the plaintiffs’ equal protection rights were so obviously violated.

    The majority introduces scientific facts as a premise that homosexuality is overwhelmingly immutable. That’s simply not fair when the other side’s relying on the biblical edict that Christians must hate gay people (as practiced by all those churches who won’t marry gay people).

  • whheydt

    Re: Michael Heath @ #15….

    The decision was unanimous, so the “majority” was all three judges. (Though it is fair to note that at least two appellate decisions on the subject–for other states–have been 2:1.)

  • Michael Heath

    The court leverages Loving far more powerfully than most:

    The limitation on interracial marriage invalidated in Loving was in one respect less severe than Wisconsin’s law. It did not forbid members of any racial group to marry, just to marry a member of a different race. Members of different races had in 1967, as before and since, abundant possibilities for finding a suitable marriage partner of the same race. In contrast, Wisconsin’s law, like Indiana’s, prevents a homosexual from marrying any person with the same sexual orientation, which is to say (with occasional exceptions) any person a homosexual would want or be willing to marry.

  • pickwick

    @dmcclean

    I disagree with your take on the statement about offense, too, and I think you’ll change your mind if you read the full opinion. It’s 40 pages, but an elegant and easy 40, if you have a bit of time.

    Nothing in Judge Posner’s opinion indicated that religious invocations were even on his mind; instead, I think his observation had more to do with the weakness of all the defense’s arguments. (It’s not often that a judge is so richly justified in saying that “the only rationale that the states put forth with any conviction… is so full of holes that it cannot possibly be taken seriously.”)

    In the oral arguments, Posner interrupted Fisher’s opening statement immediately to turn the argument toward the harms owing to same-sex-marriage bans. The harm it causes same-sex couples to deny them the status and myriad federal and state benefits provided by marriage; the harm it causes unwanted children, by lessening same-sex couples’ ability to afford to adopt them through denying them marriage benefits; and the harm done by denying the right of adopted children to think and speak of their committed parents as married, are some of the “[harms] beyond just offending” he mentioned. To me, that statement, in context, read simply as this:

    The arguments Wisconsin and Indiana presented were patently ridiculous and chased each other around in circles. It couldn’t be more clear that the legislatures didn’t arrive at their same-sex marriage bans by a process of reasoned argument, seeking to uphold a public good in a way that minimized undue harm; instead, the bans arose from the longstanding history of hatred and fear of homosexuals in this country. Some people are deeply offended by the idea of gays marrying, but that offense does not justify preventing them from marrying.

    Yay!

  • pickwick

    Ed or somebody else may have pointed up this (paraphrased) exchange during the orals, but if so I didn’t see.

    After Posner chased Fisher around for a few minutes, trying to pin him down on an answer…

    Posner: You must have some reason, give me a reason!

    Fisher: I’m sorry; it just strikes me as self-evident.

    Posner: Self-evident? It strikes you as self-evident; it strikes me as absurd.

    I’m just giddy to have a bit of good news to celebrate. :)

  • Michael Heath

    pickwick writes:

    The arguments Wisconsin and Indiana presented were patently ridiculous and chased each other around in circles. It couldn’t be more clear that the legislatures didn’t arrive at their same-sex marriage bans by a process of reasoned argument, seeking to uphold a public good in a way that minimized undue harm;

    I already knew prior to this ruling that there are no good arguments to ban gay marriage. So what I found that most distinguished the WI and IN’s case was their incredible dishonesty regarding the purpose of their respective states to allow and regulate marriage. At least one state argued that the sole purpose for the state to recognize marriage and convey benefits was to keep irresponsible biological parents together. That in order to better raise their biological children who were so often conceived irresponsibly.

    I’d bet every dollar I have that this was not the sole premise presented when marriage laws were initially established at the state level. Nor that this argument was made even several decades ago, not until the states had to justify their discrimination against gays.

    Clearly the state is looking for an argument to defend its bigotry against gay people and conjured up this one. The court responded by applying some constitutional judo. The court revealed that IN allows first cousins to marry, but only if they were older than 65 so the risk of their having kids is nil; proving that IN’s sole purpose for marriage was not what it stated to the judge.

    So the defense attorneys for the state were caught lying by the court. Shouldn’t there be some sort of sanction for this?

  • pickwick

    @ 20, The distinguished Michael Heath:

    It is baffling to me that these bans passed any legislature, let alone all of them. I won’t take your bet; I was in the single-digits and thus not actively engaged in politics when Indiana passed its ban, in 1997, but wasn’t there something in the orals about its origin? I think Fisher said it was passed because Hawaii had a measure to legalize same-sex marriage; Indiana legislators thought that Indianans (Indianians?) might fly to Hawaii if it passed, so they passed a ban that also denied recognition of SS marriages solemnized legally in other states or countries. It was reaffirmed and made harsher much more recently.

    Do you remember any public discussion on the issue from before the last decade? If these measures were publicly debated, or seen as so uncontroversial as to need no debate? It seems like state legislatures have long been Christian prayer circles, passing all sorts of things that have no rational basi; I wouldn’t be surprised to find that Wisconsin’s legislators passed theirs in a moment of boredom on a Thursday afternoon, to pass the time between naming post offices and an arduous weekend of golf and fundraising.

    I agree with your assessment that IN and WI’s arguments about the purpose of marriage are ad hoc justifications for bigotry. As with any argument, though, some of those who align with the general anti-gay position will be tempted, at first, to accept the argument uncritically–and that could be amusing, since Christians tend to conflate legal marriage with their own ceremonies, and “marriage as a carrot-and-stick for those irresponsible heteros” is a definition of marriage that’s bound to tweak some of them.

    As for sanctions, I’m not sure it’s the right sort of lie to be easily punished that way: “The state recognizes marriages and conveys benefits to keep irresponsible biological parents together–for the children, think of the children!” It’s a terribly stupid idea, and inconsistently applied at best–first cousins, as you mentioned–but maybe, just maybe, Indiana’s state government is packed with terribly stupid and inconsistent people who, having been pushed to come up with a justification, have actually come to believe it’s why their state licenses marriages and provides benefits. Mightn’t it be enough of a defense, to argue that the position was held sincerely, if stupidly? Even if it was never, ever discussed as a justification when the bans were being voted on?

    That’s probably a stretch. There is utility in giving lawyers some leeway in making their arguments, but naked dishonesty is another thing.

  • pickwick

    Forgot to note in the first paragraph that Hawaii unfortunately didn’t manage to pass their legalization bill in ’97, after all. That would have been something, if they could have started the dominoes toppling 17 years ago… Maybe they weren’t ready to topple, but it’s baffling why they wouldn’t. Gay marriage is one of the few issues that’s just so. damn. easy to figure out.

  • jws1

    @21: “Indianans?” It’s Hoosiers. After the sound pigs make when they sneeze (thanks Dave Barry).

  • whheydt

    Re: Pickwick @ #22….

    Progressive ideas are much more obvious and easy to figure out in hindsight that in foresight.

  • http://www.northernpick.com danrobinson

    I wish I could feel more confident about the Supreme Court.

  • Michael Heath

    pickwick @ 20 writes:

    I was in the single-digits and thus not actively engaged in politics when Indiana passed its ban, in 1997, but wasn’t there something in the orals about its origin? I think Fisher said it was passed because Hawaii had a measure to legalize same-sex marriage; Indiana legislators thought that Indianans (Indianians?) might fly to Hawaii if it passed, so they passed a ban that also denied recognition of SS marriages solemnized legally in other states or countries. It was reaffirmed and made harsher much more recently.

    pickwick @ 21 writes:

    Forgot to note in the first paragraph that Hawaii unfortunately didn’t manage to pass their legalization bill in ’97, after all.

    While Hawaii didn’t pass gay marriage in 1996, there was enough activity at that time that Hawaii’s efforts became the primary motivating factor for Indiana to pass its ban in 1997. The subject court reported on this in its opinion. Hawaii started protecting gay marriage in 2013.

    I highly recommend everyone read this court’s opinion. It’s the most unusually constructed appellate court opinion I’ve ever read. I’m not qualified to grade it overall beyond the fact the ruling is obviously the correct ruling. But it’ll be interesting to me to see how constitutional experts who defend gay rights weigh-in on the quality of the opinion from a structural aspect. Since there’s no credible argument against equal protection for gays, I care not a whit what the bigots think of this opinion. They have no credibility.

  • John Pieret

    Posner actually mentions the Hawaii connection:

    The legislature was fearful that Hoosier homosexuals would flock to Hawaii to get married, for in 1996 the Hawaii courts appeared to be moving toward invalidating the state’s ban on same-sex marriage, though as things turned out Hawaii did not authorize such marriage until 2013.

    Maybe it is just being a lawyer myself, but I laughed out loud several times reading the decision.

    Perhaps the most delicious moment was when Posner stuck his thumb in Scalia’s eye. Discussing Baker v. Nelson [a case where the Supreme Court, without issuing an opinion, dismissed “for want of a substantial federal question” an appeal from a state court that had held that prohibiting same-sex marriage did not violate the Constitution], Posner notes that, while Romer v. Evans, Lawrence v. Texas and United States v. Windsor are distinguishable from the present two cases they “make clear that Baker is no longer authoritative.” He then goes on to say:

    At least we think they’re distinguishable. But Justice Scalia, in a dissenting opinion in Lawrence … joined by Chief Justice Rehnquist and Justice Thomas, thought not. He wrote that “principle and logic” would require the Court, given its decision in Lawrence, to hold that there is a constitutional right to same-sex marriage.

    Ouch!

  • Chiroptera

    John Pieret, #27: Ouch!

    Speaking as a non-lawyer, I remember some time ago reading a couple of Scalia’s dissents. I was amazed at how the ones I was reading (I no longer recall which ones exactly) came across more as hysterical diatribes than a mere different opinion, sometimes even seeming to skirt the edges of being unprofessional (but amusing — I have to admit that Scalia had a sharp wit, at least in those days).

    What would make this more delicious is if Scalia himself realizes how his lack of restraint (if my impressions are accurate) is now coming back to haunt him.

  • pickwick

    @ whheydt, 24:

    Aye, fair enough. Gay marriage and evolution were never topics of controversy where I grew up, so it was a shock to find that they were thus elsewhere–in large swathes of my state, for example. :(

    @ jws1, 23:

    Gesundheit!

    And thank you for passing along the words of Dave Barry, Most Reverend of the Holy Church of Snorting Coffee Out One’s Nose and Onto The Keyboard From Unexpected Mirth.

  • pickwick

    @27, John Pieret:

    Ah, that’s right, it was in the opinion itself.

    It is a beautiful thing to see Scalia’s dissents turned against him, over and over. This has to be, what, the fourth or fifth decision citing them to justify overturning SSM bans in the past year?

  • John Pieret

    Chiroptera:

    What would make this more delicious is if Scalia himself realizes how his lack of restraint (if my impressions are accurate) is now coming back to haunt him.

    The thing is that Scalia can’t, I think, even in his own mind, pretend that Posner is beneath him in his intelligence and knowledge of the law … a defense mechanism Scalia often employs in sneering at his opponents.

    Pickwick:

    This has to be, what, the fourth or fifth decision citing them to justify overturning SSM bans in the past year?

    Several have and, in particular the District court judge in the Utah case, likely to make it to SCOTUS next term, quoted Scalia’s dissent in <Windsor:

    In his dissenting opinion, the Honorable Antonin Scalia recognized that this result was the logical outcome of the Court’s ruling in Windsor:

    In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion . . . is that DOMA is motivated by “bare. . . desire to harm” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status. 133 S. Ct. at 2709 (citations and internal quotation marks omitted).

    The court agrees with Justice Scalia’s interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.

    I hope Scalia enjoys eating his words (though I doubt, in the end, it will trouble him much).

  • John Pieret

    By the way, what is so funny is Posner’s adept use of sarcasm, a talent I aspire to. That “At least we think they’re distinguishable” is priceless!

  • whheydt

    Re: John Pieret @ #32…

    I was taken by his parenthetical assumption that Holmes meant the English Henry IV rather than the French Henry IV.

  • gshelley

    I didn’t see it in the coverage, but as a couple of others have pointed out, Indiana allows first cousins to marry as long as they are too old to have children. Several places also state Wisconsin allows it as well if the woman is oer 55 or either are unable to have children

    I can understand them making these arguments a year ago, when they hadn’t been challenged. I can sort of understand states making them and hopping to give a sympathetic anti gay judge an excuse to rule in their favour. I can even understand them making them because they have to at least say something if they want to appeal to the Supreme, but I just don’t get them making arguments that are disproved by their own marriage laws.

  • whheydt

    Re: gshelly @ #34…

    Also note that one of the states (Indiana?) recognizes first-cousin marriages as valid if they were entered into in a state that permits them (Posner’s example was Tennessee). This argues against a law barring the recognition of out of state SSMs.

    I was a bit surprised that no one brought that sort of thing up in the arguments yesterday over the Idaho laws, since Idaho doesn’t even have a domestic partners law. (The lawyer arguing the Idaho case was put on the spot about divorce, saying that Idaho regrets having instituted “no fault” divorce, but wouldn’t commit to there being any effort to reverse that or to bar divorce altogether, which would be the logical course to follow given the argument he *was* trying to make.)