Judges Ask Pointed Questions About Same-Sex Marriage Bans

Judges Ask Pointed Questions About Same-Sex Marriage Bans

By Annie Sweeney and Meredith Rodriguez, Chicago Tribune

CHICAGO — Attorneys for Indiana and Wisconsin faced tough, pointed questions from a panel of three federal appeals judges in Chicago during Tuesday 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.

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?”

Later, Judge David F. Hamilton pressed Wisconsin Assistant Attorney General Timothy C. 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 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.

“It was encouraging …to hear about how, when we talk about any state’s interest in marriage, it is important that same sex couples be able to have the same protections for the children that they adopt and mutually agree on deciding to have,” he said. “So I think one of the best things about what I heard in there today is there is a state interest in same sex couples being able to get married.”

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 Tuesday. 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.

Gay marriage became legal across Illinois in June, after the law was signed in November 2013.

Photo: sigmaration via Flickr

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