A unanimous panel of federal judges in Chicago ruled Thursday that laws banning same-sex marriage in Indiana and Wisconsin are unconstitutional, becoming the third appeals court to rule that gay couples must be allowed to marry.
The lengthy, often sarcastic ruling from the U.S. Court of Appeals for the 7th Circuit said the states could not justify denying marriage to homosexuals, who it said are “among the most stigmatized, misunderstood and discriminated-against minorities in the history of the world.”
“The grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible,” wrote Circuit Judge Richard Posner, an influential jurist chosen for the bench by President Ronald Reagan.
He was joined in the opinion by judges Ann Claire Williams, who was nominated by President Bill Clinton, and David Hamilton, chosen by President Obama.
Two other regional appeals courts — the level of review just below the Supreme Court — have ruled that state bans are unconstitutional. The U.S. Court of Appeals for the 10th Circuit in Denver struck down bans in Utah and Oklahoma, and the U.S. Court of Appeals for the 4th Circuit in Richmond overturned the ban in Virginia.
The winners and losers in all of those cases have asked the Supreme Court for a definitive ruling on whether the fundamental right to marry must be extended to same-sex couples or whether states may define marriage as only between a man and a woman.
The Supreme Court could consider whether to accept the question as early as this month.
The 7th Circuit’s decision was not unexpected. During oral arguments, Posner had been a relentless interrogator of the states’ lawyers, asking whether the laws were motivated by “hate” and “savage” discrimination.
But the speed of the 40-page ruling was surprising. It came only nine days after oral arguments.
The panel said the laws deprived same-sex couples of the equal protection guaranteed by the Constitution. Such discriminatory laws, the judges said, required government to present a compelling case as to why they are necessary.
“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 wrote.
He ridiculed the notion that because only heterosexual couples can biologically produce children, it made sense for the states to limit marriage to straight couples.
“Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry,” Posner wrote. “Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”
In both states, Posner noted, homosexuals are allowed to adopt children, and in Indiana, unmarried gay couples are allowed to jointly adopt.
He added: “The state should want homosexual couples who adopt children — as, to repeat, they are permitted to do — to be married, if it is serious in arguing that the only governmental interest in marriage derives from the problem of accidental births. (We doubt that it is serious.)”
The panel also made short work of the states’ argument that it was constrained from ruling on the merits of the case. Their argument was based on the fact that the Supreme Court once chose not to hear a case about same-sex marriage because it said there was lack of a “federal question.”
The case, Posner wrote, “was decided in 1972 — 42 years ago and the dark ages so far as litigation over discrimination against homosexuals is concerned.”
The ruling does not immediately go into effect. The Supreme Court has stepped in to forbid marriages in the other states while the appeals proceed.
The decision came a day after a federal judge in Louisiana upheld that state’s ban on same-sex marriage. It was the first such decision by a district judge, whereas more than 20 challenges have gone the other way.
They are the result of the Supreme Court’s 2013 decision in U.S. v. Windsor, which struck down the part of the federal Defense of Marriage Act that defined marriage as only between a man and a woman. But that ruling did not settle the question of whether states may impose such definitions.