LISTEN: 7th Circuit hears oral arguments in Wisconsin & Indiana marriage cases

Today, August 26, the United States Court of Appeals for the 7th Circuit heard oral arguments in landmark marriage cases out of two different states - Indiana and Wisconsin. In each state, federal judges have ruled in favor of marriage for same-sex couples, striking down anti-marriage laws.

Please note that a ruling is not expected for at least a few weeks. Two other federal appellate courts - the 10th Circuit and the 4th Circuit - have already affirmed the freedom to marry in three different cases, and defendants in all three cases have said they will seek review from the United States Supreme Court. 

The arguments in both cases are being heard by a three-judge panel. The panel, randomly assigned this morning, is comprised of judges Richard Posner, Ann Claire Williams, and David F. Hamilton. Judge Posner was appointed by President Reagan, Judge Williams was appointed to the 7th Circuit by President Clinton (but initially appointed to federal judgeship by President Reagan) and Judge Hamilton was appointed by President Obama. 

Freedom to Marry founder and president Evan Wolfson reflected today on the big day. He said:

Appellate judges in America’s heartland today heard powerful testimony from same-sex couples seeking the freedom to marry in order to make a lifelong commitment and build a family. From the other side, they heard the same unavailing arguments from marriage opponents, who even after waves of court cases, legislative battles, and public debate still cannot provide a single legitimate reason, let alone any evidence, justifying the continued denial of the freedom to marry. The Seventh Circuit judges should join the legal consensus of nearly 40 other courts across the country, strike down marriage discrimination in Indiana and Wisconsin, and move toward as speedy an end as possible to the harms that flow every day from the denial of the freedom to marry.

Previous Coverage of Marriage at the 7th Circuit

Indiana: Baskin v. Zoeller

On June 25, U.S. District Court Judge Richard L. Young ruled in favor of the freedom to marry in this case and two others (Midori Fujii v. State of Indiana and Lee v. Pence, which have since been consolidated under Baskin), striking down the marriage ban for same-sex couples. For the next three days, hundreds of same-sex couples across the state received marriage licenses in Indiana until the ruling was stayed by the 7th Circuit Court of Appeals. Previously this year, Judge Young granted an emergency temporary restraining order requiring the state to respect the marriage of Nikki Quasney & Amy Sandler, who need to be recognized as married in the event that Nikki, who has been diagnosed with terminal cancer, were to pass away. That order is not stayed. The various cases are led by Lambda Legal, the American Civil Liberties Union, the ACLU of Indiana, and Indiana Equality Action.

Other plaintiffs in the case today include First Responders who need respect for their marriages in order to access vital pension protections, unmarried same-sex couples who wish to marry in the Hooiser State, and a widow whose partnership of more than a decade is not respected in Indiana. 

Arguing the marriage cases today on behalf of the plaintiffs in Indiana are Lamba Legal's Camilla B. Taylor (pictured above, right) and the ACLU's Kenneth J. Falk. Arguing on behalf of the plaintiffs in Wisconsin's case is James Esseks, Director of the ACLU LGBT Project (pictured above, left).

Listen to the full audio from the oral argument at the U.S. Court of Appeals for the 7th Circuit:

Key Quotes from the Judges in the Hearing:

  • Judge Posner: "Suppose you've been adopted by same-sex parents and you come home one day from school and you say, 'You know, all of the other kids in class have a mom and a dad. I just have two moms or two dads - what's that about?' And suppose the parents say, 'In our society, an adult can marry a person of the opposite sex or a person of the same sex. But it's marriage in both cases - your classmates' parents are married, your parents are married. There's nothing to worry about.' Contrast that with the same situation, but the parents have to say, 'Well, we're your parents, but we're not allowed to be married.' It's just a difference. Which do you think is better for the psychological welfare of this child - the married same-sex couple or the unmarried couple?'"
  • Judge Hamilton: "I'd like to follow up on this question about intended pregnancies. You said in your brief that 'Marriage attracts and then regulates couples whose sexual conduct may create children in order to ameliorate the burden society ultimately bears when unintended children are not properly cared for.' Why is that burden limited to unintended children? When we talk about intended prengancies, that may be a fleeting intent. I would think that the state's interest is equal whether the children or intended or unintended."
  • Judge Posner: "Why do you prefer heterosexual adoption to homosexual adoption? Of course you do: You give all sorts of benefits to the heterosexual adoptive parents and no benefits for the homosexual adoptive parents. You have to have a reason for that." Indiana Solicitor General Fischer: "The benefits that you're talking about are not triggered by sexuality - they're triggered by marital status." Judge Posner: "Oh come on now, you're going in circles."
  • Judge Williams: "Would you agree that marriage is not just about having children, but about raising children? You agree, those are two components?" Fischer: "Yes." Judge Williams: "Then are you saying that same-sex couples cannot successfully raise children?" Fischer: Absoltuely not. Judge Williams: "Well if Indiana's law is about successfully raising children, and you agree that same-sex couples can successfully raise children, why shouldn't the ban be lifted as to them?" Fischer: "I think the assumption is that with opposite-sex couples, there is very little thought given during the sexual act sometimes as to whether babies may be a consequence." Judge Williams: "So, because gay and homosexual couples actually choose to be parents, choose to take on that obligation, that difference of choice is set up differently than accidental? Here are people who actually want to have children - know that they want to have children. It is not accidental: They make that commitment to raise children. I just don't get that."
  • Judge Hamilton: "The right to equal protection of the laws is an individual right. Also, the argument you're making is exactly the same argument that was made with respect to race in Loving v. Virginia, and it was flatly rejected at the Supreme Court. The argument was made that neither race was discriminated against because both were prohibited and affected in the same way. The Supreme Court rejected that argument, treating the classification as intolerant. So, if we follow that logic, it would seem to me we're in the realm of heightened scrutiny based on sex discrimination." 
  • Judge Posner: "Have you read any of the briefs in the Wisconsin case? Have you read the amici curiae brief of the Family Equality Council? It has a great deal of rather harrowing information about the problems created for children and their parents in the case of same-sex couples not being allowed to marry who have adopted children - how they feel when they grow up, how what happens when one of their parents dies. What's on the other side of this scale outweighing these costs? Is there an empirical basis for anything you've said?"

Wisconsin: Wolf v. Walker

On June 6, U.S. District Court Judge Barbara Crabb ruled in favor of the freedom to marry in this case, striking down the marriage ban for same-sex couples. For about one week, hundreds of same-sex couples across Wisconsin received marriage licenses until Judge Crabb stayed her ruling. The case was filed by the American Civil Liberties Union. 

Listen to the full audio from the oral argument at the U.S. Court of Appeals for the 7th Circuit. Wisconsin Assistant Attorney General Timothy C. Samuelson argues against the freedom to marry for the first 20 minutes, and the ACLU's James Esseks makes the case for marriage for all in the second half. 

Key Quotes from the Judges in the Hearing:

  • Judge Posner: "How can tradition be a reason for anything? That comes back to Loving again: The tradition of forbidding interracial marriage went back to colonial times. It was 200 years old by the time. So tradition per se is not a grounds for continuing: We've been doing this stupid thing for 100 years, 1,000 years, we'll keep doing it because it's tradition? You wouldn't make that argument. Don't you have to have some empirical or practical or common-sense basis for barring these marriages?"
  • Judge Williams: "I want to talk about this recognition of out-of-state same-sex marriages. As I understand your position, you're saying that Wisconsin's law doesn't void out-of-state same-sex marriages - it just doesn't recognize them. What are the practical differences between voiding out-of-state same-sex marriages and just not recognizing them? I don't get that."
  • Judge Posner: "How is society being helped with this marriage ban? You're not trying to force heterosexuals into homosexual marriages. So what is the harm? Does it hurt heterosexual marriages? Does it hurt children? What is the harm?"
  • Judge Posner: "You don't have any sort of empirical or conjectural basis for your law."
  • Judge Posner: "Speculate for a moment: Suppose someone said to you, 'You know, we're worried: Should we permit homosexual marriage?' What would you tell a person were the kind of bad things that may occur in the future? That heterosexuals may be turned into homosexuals? If you're not worried about that, what are your other worries?"

Learn all about the 7th Circuit Marriage Cases Here