A randomly assigned three-judge panel of the 7th Circuit Court of Appeals appeared to be leaning heavily toward gay and lesbian couples Tuesday while weighing the constitutionality of twin same-sex marriage bans. The hearing marks the fifth time a federal appeals court has heard marriage equality arguments this year, and pushes the issue one step closer to being considered by the U.S. Supreme Court.
Two cases were before the Chicago-based 7th Circuit on Tuesday -- one challenging Wisconsin’s same-sex marriage ban, and a consolidated set of three lawsuits against Indiana’s. Both bans were struck down by federal judges in June, allowing hundreds of same-sex couples to marry in each state.
Judges ultimately put those rulings on hold, however, pending appeals by state officials. The same federal judge who struck down Wisconsin’s ban stayed her decision after a week of legalized same-sex marriage. Indiana only allowed gay and lesbian couples to marry for a couple of days before the 7th Circuit court stepped in and issued a stay.
In what could be considered a legal jackpot for marriage equality advocates, Tuesday’s hearing drew arguably the most liberal three-judge panel imaginable from the Republican-dominated 7th Circuit court. Two of the judges, David Hamilton and Anne Claire Williams, were appointed by Democrats (Hamilton was actually the first judge nominated to the federal judiciary by President Obama.) And the third -- Judge Richard Posner, a President Reagan appointee -- has been an outspoken critic of the modern GOP.
All three judges peppered state attorneys with tough questions during Tuesday’s proceedings and appeared skeptical of their arguments in defense of same-sex marriage bans. Posner balked at Wisconsin Assistant Attorney General Timothy Samuelson’s repeated reference to “tradition” as grounds for denying same-sex couples equal marriage rights.
“It was tradition to not allow blacks and whites to marry -- a tradition that got swept away," Posner said, according to the Associated Press.
Judge WIlliams also gave Samuelson a hard time when he struggled to name a societal benefit derived from banning same-sex nuptials. As Samuelson pointed to a yellow courtroom light indicating his time was up, Williams joked: “It won’t save you.”
Like Posner, Judge Hamilton drew a connection between the case for marriage equality and the 1967 Supreme Court decision, Loving v. Virginia, which struck down interracial marriage bans. Hamilton said the right to equal protection arguments in both cases were “exactly the same,” placing the marriage rights of same-sex couples “in the realm of heightened scrutiny.”
Posner also appeared particularly sensitive to the psychological damage done to children whose parents are barred from marrying. To illustrate this point, Posner presented two contrasting scenarios:
"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?'"
Two parents who may very well have had a version of that conversation with their children are Niki Quasney and Amy Sandler, the only same-sex couple whose marriage is currently recognized in the Hoosier State. Even though the 7th Circuit halted same-sex nuptials in Indiana, the court carved out an exception for Quasney and Sandler because Quasney is battling ovarian cancer. Without this recognition, Sandler’s ability to make life-saving or end-of-life decisions for Quasney would be called into question. In fact, many of the other plaintiff couples have encountered similar roadblocks in making medical decisions for their sick loved ones.
“Not a day goes by that I don’t think about how losing her could damage our family,” wrote Sandler in an op-ed for the Indianapolis Star. “But what makes this journey even more difficult is that our state representatives are trying to bring additional harm and stress onto Niki and I, and every loving, committed same-sex couple in Indiana.”
Indiana’s Republican Attorney General Greg Zoeller is defending the ban on the grounds that traditional marriage is in the interest of the state. Wisconsin’s Republican Attorney General J.B. Van Hollen argues that there is no fundamental right to same-sex marriage. Outside groups have also submitted 32 “friend of the court” briefs spanning over 1,400 pages to the 7th Circuit on behalf of both the plaintiffs, and the defendants.
Tuesday’s hearing marked the fifth time a federal appeals court has heard arguments in a marriage equality case since last year’s landmark Defense of Marriage Act (DOMA) ruling, which cleared the way for the U.S. government to begin recognizing same-sex nuptials. Earlier this year, the 10th Circuit Court heard arguments in two lawsuits -- one from Utah, and one from Oklahoma -- finding in both cases that the state’s bans on same-sex marriage violated the U.S. Constitution’s equal protection clause. Later on, the 4th Circuit Court ruled Virginia’s same-sex marriage ban unconstitutional as well, and refused to issue a stay on its decision. Gay and lesbian couples were slated to begin marrying in the commonwealth last week, but the Supreme Court intervened and delayed the 4th Circuit Court’s ruling. The 6th Circuit Court of Appeals also heard arguments earlier this month in marriage equality cases out of Kentucky, Michigan, Ohio, and Tennessee, and could issue a ruling at any time.
So far, the Supreme Court has received petitions to review three marriage equality cases -- Utah’s, Oklahoma’s, and Virginia’s -- though the justices are not required to hear any of them. Nevertheless, the legal momentum behind the marriage equality movement leads many on both sides of the debate to believe that the Supreme Court will consider a case and rule on the constitutionality of same-sex marriage bans once and for all. Like dozens of federal challenges pending across the country, the Wisconsin and Indiana lawsuits have the potential to draw a broad ruling from the high court that legalizes same-sex marriage throughout the nation.