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On August 26, 2014, a three judge panel of the U.S. Court of Appeals for the Seventh Circuit heard arguments in the Indiana and Wisconsin marriage equality cases. The panel, consisting of Judges Richard Posner, Ann Claire Williams, and David Hamilton, openly expressed skepticism concerning the justifications for the states' bans on same-sex marriage proffered by the defendants. There is little question that the panel will unanimously uphold the district court decisions that struck down the same-sex marriage bans as unconstitutional.
Although the Seventh Circuit is a conservative Court, with a large preponderance of Republican-appointed judges, the panel that heard the case included a Reagan appointee (Posner), a Clinton appointee (Williams), and an Obama appointee (Hamilton). Posner is regarded as one of the leading conservative jurists in the nation, while Williams is considered a leading liberal jurist, but all three members of the panel seemed united in the belief that Indiana's and Wisconsin's bans on same-sex marriage are unconstitutional.
As Chris Geidner of BuzzFeed observed, "In the most lopsided arguments over marriage bans at a federal appeals court this year, the 7th Circuit Court of Appeals judges clearly were ready to strike down the bans--with the only real question being what reasoning they will use to do so."
From the very beginning of the session, in which the Court heard arguments in the Indiana case, Baskin v. Bogan, and then the Wisconsin case, Wolf v. Walker, the judges greeted the justifications for the bans offered by the attorneys for the states with incredulity, sometimes even scorn. The judges referred to the arguments of the attorneys for the state with such terms as "absurd," "ridiculous," and "pathetic."
The questions posed by Judge Posner frequently focused on the affect of the bans on the children of same-sex couples and on the disconnect between the stated purpose of encouraging "responsible procreation" and the negative consequences of excluding same-sex couples from marriage. At one point, Posner asked Indiana Solicitor General Thomas Fisher, "Why do you prefer heterosexual adoption to homosexual adoption?" He stated, "You want [the children of same-sex couples] to be worse off."
Posner rehearsed some of the psychological damage to children whose parents are not allowed to marry. "What horrible stuff," he said, and pressed a tongue-tied Fisher to say what benefits to society does banning same-sex marriage justify "that kind of damage to children?"
Wisconsin Assistant Attorney General Timothy Samuelson was often unable to answer the questions he was peppered with by the judges. When he fell back on "tradition" and "legislative discretion," Posner openly mocked him.
"How can tradition be the reason?" he asked, and said, "we've been doing a stupid thing" cannot justify discrimination. "It was tradition to not allow blacks and whites to marry--a tradition that got swept away," Posner said, and added that prohibition of same sex marriage is "a tradition of hate . . . and savage discrimination."
In contrast to the hostile reception that greeted the attorneys for the state, the lawyers representing the same-sex couples were treated gently. There were some questions about polygamy and some parrying about the level of scrutiny that should be accorded claims of discrimination on the basis of sexual orientation.
But the judges seemed of one mind that the Indiana and Wisconsin bans violate the constitutional guarantee of equal protection of the laws.
As Geidner observes, "The only question in the hearing Tuesday was whether the bans also violated due-process guarantees because marriage is a fundamental right."
The argument in Baskin v. Bogan may be heard here.
The argument in Wolf v. Walker may be here here.
In the video below, some of the plaintiffs in the cases heard at the Seventh Circuit Court of Appeals speak at a rally in Chicago's Federal Plaza on August 25, 2014.