Appeals court rules: Indiana, Wisconsin bans are unconstitutional

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The Seventh Circuit Court of Appeals has ruled that the bans against same-sex marriage in Indiana and Wisconsin are unconstitutional.

The ruling came on Sept. 4 in Baskin v. Bogan of Indiana and Wisconsin's Walker v. Wolf and was unanimous for the three-judge panel.

The decision will go into effect in 21 days, unless the defendants seek a stay of the ruling, according to the ACLU of Wisconsin.

The state attorneys general, who are defending the bans, could ask for a review by the full appeals court for the Seventh Circuit or go to the U.S. Supreme Court. Mid-day on Sept. 4, Wisconsin indicated it would go to the high court.

Republican appointee Richard Posner wrote the opinion for the appeals court. He said, “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.”

Posner also wrote, "A degree of arbitrariness is inherent in government regulation, but when there is no justification for government’s treating a traditionally discriminated-against group significantly worse than the dominant group in the society, doing so denies equal protection of the laws. One wouldn’t know, reading Wisconsin’s brief, that there is or ever has been discrimination against homosexuals anywhere in the United States."

The assistant attorney general for Wisconsin, during oral arguments on Aug. 26, had struggled to defend the state ban that voters approved in 2006, saying that the Wisconsin GOP leadership was trying to protect tradition in standing against marriage equality.

The court, in its answer on Sept. 4, said there are good traditions 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. Tradition per se therefore cannot be a lawful ground for discrimination-regardless of the age of the tradition."

Among the first to react, Sarah Warbelow at the Human Rights Campaign said, “Today yet another federal appeals court issued a ruling affirming that no state should be able to tell two people in love they can’t legally marry, just because they are gay or lesbian. LGBT families in these two states are just as deserving of the rights and protections that come with civil marriage as any other family across the country.  The Supreme Court of the United States today has even more evidence that marriage equality should be the law of the land in America.”

The Seventh Circuit Cases…

Indiana. On June 25, U.S. District Court Judge Richard L. Young ruled that Indiana’s ban on marriage equality is unconstitutional.  The ruling covered three cases. Young did not stay the ruling, and couples immediately began marrying.

Indiana Attorney General Greg Zoeller appealed Young’s ruling and requested a stay of the Seventh Circuit Court of Appeals.

On June 27, the Seventh Circuit granted the stay, and also consolidated the three marriage cases for the appeal.

The appeals court hearing took place on Aug. 26.

Wisconsin. On June 6, U.S. District Judge Barbara Crabb ruled against Wisconsin’s constitutional amendment banning marriage equality. In Wolf v. Walker, the American Civil Liberties Union, ACLU of Wisconsin and the law firm of Mayer Brown LLP sued the state on behalf of same-sex couples seeking to marry or seeking recognition of their marriages, arguing that the Wisconsin’s ban on marriage equality violates the couples’ due process and equal protection rights under the 14th Amendment to the U.S. Constitution.

Crabb did not stay her ruling, but also left unclear whether the state should stop enforcing the ban. Couples began marrying in the state and Wisconsin officials requested a stay from the Seventh Circuit Court of Appeals, but were denied, with the appeals court saying Crabb had still not issued final judgment.

Ultimately, Crabb stayed her ruling, citing the Supreme Court of the United States’ decision to halt marriages in Utah following a similar federal court ruling striking down that state’s marriage equality ban. 

The appeals court heard arguments on Aug. 26 and issued a ruling well ahead of when it was expected.

Reaction to the news was swift on the Thursday afternoon.

“Today’s decision is yet another affirmation that discrimination doesn’t just violate our Wisconsin values – it violates our Constitution and marriage equality will be the law of the land in our state," said U.S. Sen. Tammy Baldwin of Wisconsin in a statement. "It is simply wrong for Gov. (Scott) Walker and Attorney General (J.B.) Van Hollen to continue to defend discrimination and with the unanimous rejection of their position by another federal court, it is long past time for them to stop standing in the way of freedom, fairness and equality for all Wisconsinites. Love is love, family is family, and discriminating against anyone’s love, against anyone’s family, is not only wrong, it is unconstitutional.  It is now time for us to keep our promise to pass on to the next generation a Wisconsin that is more equal, not less equal.”

U.S. Rep. Mark Pocan, D-Wisconsin, said, “I urge Gov. Scott Walker and Attorney General J. B. Van Hollen to respect the court’s ruling and the spirit of the U.S. Constitution. In ruling after ruling, it has become unmistakable that the promise of America is everyone should be treated equally and with dignity.  Today’s ruling brings us one step closer to fulfilling that promise.”

ACLU of Wisconsin legal director Larry Dupuis said in his statement, “Today we join same-sex couples, their families and our allies across the country in celebrating this victory. Every loving and committed couple in the U.S. should have the freedom to marry, protect their loved ones, and have their commitment honored by our legal system. We celebrate and tomorrow we continue the fight to make marriage equality the law of the land, not just in certain states."

Judi Trampf, one of the plaintiffs in the case, added, “Katy and I have been together for over 25 years and want very much to get married. To be honest, before we won the case in federal court, we didn’t realize how much marriage meant — mostly because we could never let ourselves imagine it — it wasn’t a reality for us for so many years. Now marriage could — and should — be our reality. We want very much to get married.  To have public and legal recognition of our committed relationship is very important to us both."

Added Dane County Executive Joe Parisi: “Fairness and equality are again upheld in court as being the law of our state. As a legislator I fought against the constitutional amendment banning same-sex marriage and we have now seen equality prevail in yet another court of law. 

“It is time for Attorney General JB Van Hollen and Gov. Scott Walker to stop wasting state time and resources trying to prevent people who are in love from getting married and instead focus on creating jobs, fighting crime and supporting equality.”

In Indiana, the statewide group Hoosiers Unite for Marriage issued a release, saying, "We are incredibly grateful that the appellate court ruled swiftly in favor of Indiana couples who are or want to be legally married in our state. This ruling means so much to the plaintiffs in this case and all couples who have long sought the same protections under law that other Hoosier families already have. We know that this is not likely to be the last step on the road to marriage equality, but today, love wins in Indiana."

Cases from nine other states are before four federal appeals courts.

Both the Fourth and Tenth circuits have upheld rulings striking down state bans on same-sex marriage. Those cases — out of Utah, Oklahoma and Virginia — have been appealed to the Supreme Court.

In total, 33 states either have marriage equality or have seen state marriage bans struck down as unconstitutional in federal or state court. Since the Supreme Court’s historic marriage rulings last year, there have been 21 federal court decisions that bans on marriage equality are unconstitutional, with only one ruling in federal court upholding a ban.  

Same-sex couples can legally marry in 19 states and the District of Columbia.

Editor's note: This story will be updated.