7th Circuit Court of Appeals hears oral argument in same-sex marriage appeals

The Seventh Circuit Court of Appeals heard oral arguments this morning in the same-sex marriage appeals of Baskin et al. v. Bogin, 14-2386, 14-2387, 14-2388 (Indiana), and Wolf et al. v. Walker, 14-2526 (Wisconsin).

The Chicago Tribune reports, Judges ask pointed questions about same-sex marriage bans in Wis., Ind.:

Attorneys for Indiana and Wisconsin faced tough, pointed questions from a panel of three federal appeals judges in this morning’s arguments over bans on gay marriage in those states.

Judge Richard Posner waited just seconds before interrupting the solicitor general from Indiana, beginning a line of questioning about why children of same-sex couples should not be allowed to have legally married parents, as do children of heterosexual couples.

[Keep in mind that Judge Posner is a rock star among conservatives.]

To press his point, Posner told a fictitious story of a 6-year-old forced to go to school and see that he is different from his classmates.

“Wouldn’t the children want their parents to be married,” Posner asked, also noting the thousands of children in foster care in Indiana who need to be adopted.  “What do you think is psychologically better for the child?”

Attorneys from both states were on the defense during much of the questioning.

The Indiana solicitor general defended the ban by linking marriage, as an institution, to procreation and the need for that to be regulated by the state.

“Men and women create babies and there has to be a social mechanism to deal with that,”  Thomas M. Fisher said under heavy questioning.

Earlier, Fisher turned aside any suggestion that the state was discriminating against same-sex couples.  “It’s biology,” he said. “It’s simply that men and women make babies.”

HmmHmm. Then logically it proceeds that women who have reached menopause, women who have had a hysterectomy, and women who for a host of other medical reasons are infertile or cannot bear children  should not be allowed to marry even in a “traditional” marriage. And “opposite sex” couples who, due to their age or personal lifestyle choice choose not to have children, well, you’re all freaks of nature who should not be allowed to marry even in a “traditional” marriage either! This is a slippery-slope argument. Will the state now require couples to bear children as a condition of a marriage license?

Timothy C. Samuelson, the assistant attorney general from Wisconsin, repeatedly used the word “tradition”  to defend the ban in that state on gay marriage, leading exasperated judges to ask what he meant by that.

“Tradition is based on experience,” Samuelson said.

Judge David F. Hamilton pressed Samuelson to explain why “tradition” was a sufficient argument for why a ban in that state should not be overturned.

“I suppose you know how that’s been working out in practice” over the last several decades, Hamilton pressed, referring to the concept that marriage is meant to promote childbirth and to keep couples together.

After the 90 minutes of arguments concluded, supporters of gay marriage flooded into the Dirksen U.S. Courthouse lobby, some carrying flowers. The mood was upbeat.

“Hopeful,” was how Amy Sandler, an Indiana plaintiff, described the debate. “I felt it was moving in the direction of the rest of the country.”

Kyle Megrath, marriage coordinator for Hoosiers Unite for Marriage, said he was cheered by today’s proceedings.

* * *

Megrath said judges were hard on the attorney from the state of Indiana.

“I was surprised,” Megrath said. “I think that it was pretty clear the judges saw weakness.”

The 7th U.S. Circuit Court of Appeals in Chicago hears cases not only from Illinois but from Wisconsin and Indiana. Several federal lawsuits have been filed in both states on behalf of same-sex couples who say the refusal to recognize and allow same-sex marriages violates their constitutional rights.

Lower courts in Wisconsin and Indiana agreed the bans were unconstitutional, but each state challenged those decisions to the appellate court. No decision was expected today. The cases in both states were originally filed in winter and spring 2014.

There are 92 cases pending in 33 states in federal and state courts and potentially three headed to the Supreme Court. Last month a federal appellate court in Virginia also issued a pro-gay marriage ruling, though the Supreme Court has issued a stay pending appeals, putting license applications on hold.

The Next cases to be heard by the courts of appeal are in the 9th Circuit Court of Appeals on Monday September 8, in Sevcik v. Sandoval, 12-17668 (Nevada), Latter v. Otter, 14-35420, 14-35421 (Idaho), and Geiger v. Kitzhaber, 14-35427 (Oregon). Arizona is in the 9th Circuit.