Appeals court justices grill anti-equality lawyers

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ACLU attorney Ken Faulk talks to reporters. — PHOTO: AP Photo/Charles Rex Arbogast

Judges scoffed at defenders of Indiana and Wisconsin bans on same-sex marriage and bristled at their outdated, flawed arguments for continuing to deny equal rights to gays and lesbians in the Midwestern states during an appeals court hearing on Aug. 26 in Chicago.

A crowd began to assemble on the federal plaza the evening before the three-member panel of the Seventh Circuit Court of Appeals heard oral arguments in equality cases from Indiana and Wisconsin.

Defending the constitutional amendment approved by voters in 2006 to the skeptical panel, Wisconsin assistant Attorney General Timothy Samuelson repeatedly cited “tradition.”

He didn’t seem to persuade any of the judges.

Judge Richard Posner, appointed by Republican President Ronald Reagan in 1981, said he was reminded that proponents of laws barring interracial marriage also cited “tradition.” That, Posner said, was a tradition that got swept away. 

As for prohibitions against same-sex marriage, Posner said such bans are based on a “tradition of hate ... and savage discrimination” of gays.

Samuelson, during his 20 minutes before the court, struggled to offer specific reasons for banning gays from marrying and seemed to welcome a yellow light signaling his allotted time was up.

“It won’t save you,” said Judge Ann Claire Williams, who was appointed by Democrat Bill Clinton.

“It was worth a try,” Samuelson said.

Indiana Solicitor General Thomas Fisher didn’t have an easier time before the panel.

His presentation was interrupted by Posner, who read through a list of difficulties that children of same-sex couples can face because their parents cannot legally marry and then asked Fisher to identify a societal benefit of barring same-sex marriage that trumps the harm posed to children whose parents are denied legal standing.

Fisher responded, “All this is a reflection of biology. Men and women make babies, same-sex couples do not. …We have to have a mechanism to regulate that, and marriage is that mechanism.”

A ruling from the court is expected this fall, probably in October, but challenges could be taken as high as the U.S. Supreme Court, which already has been asked to hear three other equality cases — from Utah, Oklahoma and Virginia.

“Courts across the country have ruled in favor of love, freedom and justice for same-sex couples, and we’re hopeful that this court will affirm our plaintiffs’ commitment to each other,” said Camilla Taylor, marriage project director for Lambda Legal. “The legal precedent for striking down discriminatory marriage bans is growing almost every week and with each victory, Indiana’s ban on marriage for same-sex couples becomes increasingly unjustifiable.”

Officials with the ACLU said the same for Wisconsin’s amendment reserving marriage for a man and a woman, a measure that was declared unconstitutional by a federal judge in early June. Civil rights attorneys maintain that barring same-sex couples from marrying violates the U.S. Constitution’s guarantee of equal protection.

More than 500 same-sex Wisconsin couples married during a weeklong gap between the district court ruling against the state’s marriage ban and the placement of a stay on the ruling pending an appeal. The procession to county clerks’ offices ended as Wisconsin Attorney General J.B. Van Hollen prepared his appeal.

Van Hollen’s ‘concern’

In a statement after the appeals court hearing, Van Hollen said, “My duty to support and defend the Constitution is not limited. I am increasingly concerned about the federal government’s reach into, if not domination of, powers guaranteed to the states and the people in the 10th Amendment. All laws governing domestic relations, whether they are laws concerning marriage or divorce or child custody, have been traditionally left to the states. Wisconsin’s laws defining marriage should be given the same respect and deference.”

But Van Hollen had also tried to strike down Wisconsin’s domestic partnership registry law, claiming with certainty that it was unconstitutional under state law. Every Wisconsin Supreme Court justice disagreed with his interpretation of the state’s Constitution, including the conservative Republicans who form the majority on the bench.

The ACLU and the ACLU of Wisconsin represented the same-sex couples in the Wisconsin marriage case, known as Wolf v. Walker and filed in federal court in February.

The ACLU of Indiana and Lambda Legal represent the same-sex couples challenging Indiana law.

“Some of our plaintiffs are advanced in age, some have children, and some are battling extreme medical circumstances. They are just a small sample of Hoosier families that urgently need the protections of marriage,” said Taylor.

Same-sex couples can legally marry in 19 states and the District of Columbia. Last summer, the U.S. Supreme Court overturned the provision in the 1996 Defense of Marriage Act that barred the federal government from recognizing legal same-sex marriages. Since then, marriage equality campaigns have secured 36 victories and not a single loss in the courts.