Appeals Court Declares Indiana, Wisconsin Gay Marriage Bans Unconstitutional

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September 5, 2014 — Hoosier same sex couples say they’re celebrating a victory for love after the 7th Circuit Thursday ruled, in strong language, that Indiana’s same sex marriage ban is unconstitutional.  As Indiana Public Broadcasting’s Brandon Smith reports, attorneys representing those couples say the effects of the ruling are still on hold as the case is expected to continue:



INDIANAPOLIS – The 7th Circuit Court of Appeals has declared the Indiana and Wisconsin bans on gay marriage unconstitutional with a blistering ruling that wholly rejects arguments that heterosexual marriage best protects children.

But the court did not order the states to begin issuing marriage licenses or to recognize couples who have already been married. Instead, an existing stay remains in place and Indiana Attorney General Greg Zoeller plans to appeal.

In the unanimous decision, the court said the states “have given us no reason to think they have a ‘reasonable basis’ for forbidding same sex marriage.”

In fact, the ruling says the states’ argument that same-sex couples don’t need marriage because they can’t produce children “is so full of holes that it cannot be taken seriously.”

In oral arguments just last week, Indiana Solicitor General Thomas Fisher told the appeals court that marriage nudges heterosexual parents into being responsible for their kids. And because sex between people of the same gender can’t result in a pregnancy, the legislature has a valid reason to limit marriage to heterosexual couples.

But the court said that “to the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents,” the court said. “The discrimination against same sex couples is irrational and therefore unconstitutional.”

And the decision even calls out Indiana in particular, saying the state advanced an argument that straight couples are sexually irresponsible and “producing unwanted children by the carload” and must therefore be pressured into marriage.

“Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry,” the court said. “Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”

The ruling upholds lower court decisions in Indiana and Wisconsin that had declared the state laws – which define marriage as the union of one man and one woman – unconstitutional.

Other federal appeals courts have made similar rulings and the U.S. Supreme Court is expected to take up the issue within the next year.

Gay couples who filed the Indiana lawsuit gathered to celebrate Thursday afternoon at the offices of the American Civil Liberties Union, which is representing them in the case.

Greg Hasty – one of the plaintiffs in the Indiana case – called it a “great day,” even though the legality of his marriage to CJ Vallero remains in flux. The pair wed during a brief window in June when gay marriage was legal in Indiana.

“Every time we have these decisions, it adds a little bit more joy to the day we had together,” Hasty said. “We’ll keep pushing forward until it’s recognized.”

Melody Betterman-Layne said she and her wife, Tera, were sitting in the veterinarian’s office when they received a text that the 7thCircuit had ruled in their favor. They were getting a checkup for a new puppy, whose middle name is Posner, in honor of Appeals Judge Richard Posner, who peppered Fisher with tough questions during last week’s oral arguments.

“Life turns on a dime right now,” said Melody Betterman-Layne. “You get a phone call and suddenly you’re back in the tornado. It’s exhilarating.”

And Steven Stolen and Rob MacPherson, who married in 2008 in California, said a decision in favor of same-sex marriage will provide them with tax benefits and other privileges currently afforded in Indiana only to straight couples. But Stolen said the decision is also important to the couple’s 16-year-old daughter Abbey, who wants to say her parents are married.

“How about the dignity and joy of that?” Stolen said. “It may be better than any legal point that she also is treated, frankly, constitutional.”

ACLU Attorney Ken Falk said the ruling came “fairly quick” – just nine days after oral arguments – and is effective in noting “how silly the argument is that states are using against same-sex marriage.”

“We are very, very happy,” he said. “But we have no illusion this is the end of the road.”

Zoeller said he will seek a stay of the 7th Circuit ruling from the U.S. Supreme Court to ensure the appeals court decision isn’t implemented.

“It seems clear that a final resolution of the constitutional issues involving states’ authority over their marriage licenses will need a decision from our nation’s highest court,” Zoeller said in a prepared statement.

“Since the Supreme Court has already issued stay orders in two circuit decisions, it seems appropriate that today’s decision also be stayed,” he said. “Hopefully, for the interests of everyone on both sides of these cases, the Supreme Court will make a ruling sooner rather than later,”

The three-judge panel that ruled Thursday in the case included two jurists appointed by Republican presidents and one by a Democrat. The court’s decision – and the oral arguments last week – focused primarily on issues related to children.

But the decision also said that tradition can’t be a reason to restrict marriage only to heterosexual couples. And it rejected arguments that prohibiting same sex marriage would be a “prudent, cautious” approach to the controversial issue, saying the states have not taken any action to study the effects of gay marriage on straight marriage.

“One would expect the state to have provided some evidence, some reason to believe, however speculative and tenuous, that allowing same-sex marriage will or may transform marriage,” the ruling said. But, the decision said later, “it has provided none.”

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