Michelle Enderle, left, and Rebecca Wittig apply for their marriage license on June 9, 2014, in Waukesha, Wisc.
Michael Sears/Milwaukee Journal Sentinel/MCT/Landov

Court strikes down Wisconsin, Indiana gay marriage bans

Updated

A U.S. appeals court on Thursday struck down gay marriage bans in both Wisconsin and Indiana, adding to a rush of major victories for the marriage equality movement in the last year alone.

Though a three-judge panel in the Chicago-based 7th Circuit Court of Appeals ruled unanimously that both Midwestern marriage bans were unconstitutional, it is not yet clear whether same-sex couples will be able to marry in those states or have their out-of-state marriages recognized. A spokesperson for Wisconsin Attorney General J.B. Van Hollen, a Republican, said he would appeal the decision to the U.S. Supreme Court and that the hold on same-sex marriages would remain in effect until all appeals have concluded.

Nonetheless, Thursday’s ruling — the fourth from a federal appeals court, and the first one to side unanimously with gay and lesbian couples — marks yet another victory for the marriage equality movement, and pushes the issue even closer to being considered by the nation’s highest court.

Writing for the majority, Judge Richard Posner — a President Reagan appointee, who during oral arguments appeared particularly sensitive to the psychological damage inflicted by having parents who cannot marry — said that the cases were at their core “about the welfare of American children.”

“The argument that the states press hardest in defense of their prohibition of same-sex marriage is that the only reason government encourages marriage is to induce heterosexuals to marry so that there will be fewer ‘accidental births,’ which when they occur outside of marriage often lead to abandonment of the child to the mother (unaided by the father) or to foster care,” wrote Posner in his 40-page opinion. “Overlooked by this argument is that many of those abandoned children are adopted by homosexual couples, and those children would  be better off both emotionally and economically if their adoptive parents were married.”

Furthermore, Posner wrote that “more than a reasonable basis is required” to justify the bans, seeming to call for a higher standard of judicial review than what has typically been applied to gay rights cases. Regardless of the standard, however, Posner wrote that “the governments of Indiana and Wisconsin have given us no reason to think they have a ‘reasonable basis’ for forbidding same-sex marriage.”

The decision comes one day after a different Reagan appointee, U.S. District Judge Martin Feldman, ruled that Louisiana’s marriage ban was constitutional, breaking a streak of more than 20 federal courtroom wins for marriage equality since the U.S. Supreme Court struck down key parts of the Defense of Marriage Act in 2013. That ruling cleared the way for federal agencies to begin recognizing same-sex marriages that took place in states where they were legal. But it also opened the floodgates to dozens of state- and federal-level lawsuits, which have resulted in nearly 40 victories for marriage equality so far.

Nineteen states plus the District of Columbia currently allow gay and lesbian couples to wed. The 7th Circuit joins two other federal appeals courts — the 4th Circuit and the 10th — in finding that same-sex marriage bans violate the U.S. Constitution. Those decisions on lawsuits out of Oklahoma, Virginia, and Utah have all been appealed and could be next argued in front of the U.S. Supreme Court, though the justices are not required to hear any of them. Given the sheer number of cases marching toward the high court, however, justices are expected to rule on the matter once and for all.

“Today’s ruling adds to the incredible legal momentum for marriage we are seeing in courts across the country,” said Paul Castillo, staff attorney for Lambda Legal, in a statement. “It is a joyous day for freedom and justice in the Midwest.”

Marriage and Marriage Equality

Court strikes down Wisconsin, Indiana gay marriage bans

Updated