By Patrick Marley, Milwaukee Journal Sentinel
CHICAGO — A three-judge federal appeals panel on Tuesday closely questioned bans on same-sex marriage in Wisconsin and Indiana, with one judge calling parts of the states’ arguments “absurd” and “ridiculous.”
“These people and their adopted children are harmed by your law,” Judge Richard Posner said of gay and lesbian couples who are barred from getting married. “The question is what is the offsetting benefit of your law? Who is being helped?”
Wisconsin Assistant Attorney General Timothy Samuelson responded that society as a whole benefited by preserving marriage as it has long been defined. Posner pressed on, asking if anyone would be harmed if same-sex couples were allowed to be married.
“Frankly, we don’t know if there is a harm,” Samuelson said. Later, he said, the concept of marriage could be devalued by allowing same-sex marriage and lead to heterosexual couples deciding not to get married.
During an hour and 40 minutes of arguments, Posner and the other judges on the 7th U.S. Circuit Court of Appeals panel repeatedly asked pointed questions of both sides but gave particular scrutiny to the officials defending the two states’ policies.
Also hearing the case were Judges David Hamilton and Ann Claire Williams. Posner was appointed to the appeals court by President Ronald Reagan, Williams by President Bill Clinton and Hamilton by President Barack Obama.
The couples who brought the cases faced skeptical questions, as well. The judges seemed suspicious of whether there is a fundamental right to marry and asked whether allowing same-sex marriage would open the door to the government sanctioning polygamy or incest — a possibility the couples’ attorneys downplayed.
Amid a wave of litigation nationally, eight same-sex couples in February sued to overturn Wisconsin’s 2006 amendment to the state constitution banning gay marriage and civil unions. U.S. Circuit Judge Barbara Crabb in Madison, Wisconsin, agreed with them in June and struck down the ban but stayed her decision to prevent couples from marrying while state officials pursued their appeal.
Several hundred same-sex couples in Wisconsin married before Crabb issued her stay.
The Chicago-based appeals court consolidated the case with one from Indiana, where a district court judge in June had ruled against that state’s ban on same-sex marriage.
Tuesday’s arguments drew so many people — many of them same-sex couples who were bused in from Wisconsin and Indiana — that the judges moved the arguments to a larger courtroom. Among those attending were a retired Indiana Air National Guard staff sergeant in fatigues and a retired battalion chief for the Indianapolis Fire Department in uniform.
The retired battalion chief, Ruth Morrison, said she wore her uniform Tuesday to show she had served the public. She is among those who brought suit in Indiana in hopes of getting spousal benefits for the woman she married last year in Maryland.
“We’re just asking for them to fulfill their obligations to us, like they would any other first responder,” Morrison said as she waited in line to get in the courtroom.
After the arguments, Wisconsin Attorney General J.B. Van Hollen issued a statement, arguing states should be the ones to decide policies on marriage, divorce and child custody.
“I am increasingly concerned about the federal government’s reach into, if not domination of, powers guaranteed to the states and the people in the 10th Amendment,” his statement said.
During oral arguments, Indiana Solicitor General Thomas Fisher contended there is a fundamental difference between same-sex and heterosexual couples that allows the government to treat them differently.
“Opposite-sex couples make babies,” he said. “Same-sex couples do not.”
But Posner expressed skepticism of the idea that the states were trying to promote procreation.
“You allow all these sterile couples to get married,” he said. “Why are you doing that if you’re so interested in procreation?”
Hamilton struck a similar tone, expressing doubt that Wisconsin defined marriage as between opposite-sex people to encourage them to stay together if they have children.
“I presume you’re familiar with how that’s been working out over the last 25 to 30 years,” Hamilton said to Samuelson, the assistant attorney general.
He went on to cite statistics about out-of-wedlock births, saying Wisconsin’s attempts to keep families together seem “pretty unsuccessful.”
As Samuelson pondered a question about the rationale behind banning same-sex marriage, he noted he might not be able to answer because a yellow light had come on telling him his time was nearly up. But the judges made clear they expected a response.
“It won’t save you,” Williams told him, drawing laughs from observers.
Posner, who at times appeared to lecture the attorneys defending the bans, focused on the ability of same-sex couples to adopt children. He noted adopted children would benefit if their parents could claim the tax breaks and other perks of being married.
“These children would be better off if their parents could marry, no? It’s obvious,” Posner said.
After the arguments, Julaine Appling of Wisconsin Family Action noted the issue of same-sex marriage was likely to be ultimately determined by the U.S. Supreme Court. She said she heard tough questions for both sides Tuesday and wasn’t reading too much into what the judges asked.
“I can’t read the mind and heart of a Supreme Court justice or any other judge,” she said.
Appling said men and women parent differently and children need both a father and mother.
“What you’re seeing is fatherlessness. What has fatherlessness done in Milwaukee?” she asked, saying single-parent families had contributed to crime and a lack of direction among young people.
Litigation over same-sex marriage accelerated after the U.S. Supreme Court last year struck down the federal Defense of Marriage Act, which prevented the federal government from recognizing same-sex marriages.
The 10th Circuit Court of Appeals in Denver has declared bans in Oklahoma and Utah unconstitutional. Last month, the 4th Circuit Court in Richmond struck down Virginia’s same-sex marriage ban.
Earlier this month, the 6th Circuit Court of Appeals in Cincinnati heard arguments in cases consolidated from Michigan, Ohio, Kentucky and Tennessee. A three-judge panel that heard the case has not yet ruled.
Voters in Wisconsin added the ban to the state constitution in 2006 by a vote of 59 percent to 41 percent. Since then, public sentiment has shifted in Wisconsin and nationally. For instance, last month a Marquette University Law School poll showed 56 percent of Wisconsinites surveyed would vote to repeal the ban.
AFP Photo/Joel Saget