A three-judge panel of the Seventh Circuit Court of Appeals unanimously struck down the same-sex marriage bans in Wisconsin and Indiana as unconstitutional. The decision comes a mere two weeks after oral arguments in the cases, in which Reagan appointee Judge Richard Posner described the bans as “based on hate.”
Posner’s passionate reaction to the states’ arguments continues in Thursday’s decision, which he penned for the panel. With exceptional detail and a bit of whim, he dismantles the states’ arguments in favor of maintaining their bans. He opens the opinion by declaring that these were cases “about discrimination against the small homosexual minority in the United States,” and on a deeper level, “about the welfare of American children.” Concluding that people with same-sex orientations deserve “heightened scrutiny,” a more robust protection under the Constitution from discrimination, he outlined the “harm to homosexuals” and their children by being denied marriage — psychological, social, and financial.
Indiana’s primary claim was that the sole purpose of recognizing marriages is to enhance child welfare, and thus the law serves to “channel unintentionally procreative sex into a legal regime in which the biological father is required to assume parental responsibility.” But, Posner counters that if this were true, “the state would not allow an infertile person to marry.” Indiana’s laws actually contain a mechanism that requires a certain kind of couple to be infertile to be allowed to marry: first cousins over the age of 65. Posner reacts:
Indiana has thus invented an insidious form of discrimination: favoring first cousins, provided they are not of the same sex, over homosexuals. Elderly first cousins are permitted to marry because they can’t produce children; homosexuals are forbidden to marry because they can’t produce children. The state’s argument that a marriage of first cousins who are past child-bearing age provides a “model of family life for younger, potentially procreative men and women” is impossible to take seriously.
Posner also addressed Indiana’s claims that “straight couples tend to be sexually irresponsible” and so must be pressured to marry for the children they accidentally have. “Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry,” he wrote. “Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”
One of Wisconsin’s arguments was “tradition,” that because marriage had always been between a man and a woman, it should remain that way. Noting that states defending bans on interracial marriage made the (losing) point in Loving v. Virginia, Posner explains that just because other customs are based on tradition doesn’t mean that they are worth preserving:
Wisconsin points out that many venerable customs appear to rest on nothing more than tradition — one might even say on mindless tradition. Why do men wear ties? Why do people shake hands (thus spreading germs) or give a peck on the cheek (ditto) when greeting a friend? Why does the President at Thanksgiving spare a brace of turkeys (two out of the more than 40 million turkeys killed for Thanksgiving dinners) from the butcher’s knife? But these traditions, while to the fastidious they may seem silly, are at least harmless. If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a harmless anachronism; it is a violation of the equal protection clause, as in Loving.
Wisconsin had also argued that the same-sex marriage ban was the outcome of a democratic process. Posner, observing how small the population of LGBT people is, countered, “Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.”
Though the Seventh Circuit could have provided a less favorable decision, it is, in fact, the first unanimous decision by an appellate level court, following similar 2-1 decisions in the Tenth Circuit (Utah and Oklahoma) and Fourth Circuit (Virginia). The ruling did not include a stay, but would not take effect for three weeks — in which time the Supreme Court will likely grant a stay; Wisconsin has already announced it will appeal.