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Indiana, Wisconsin same-sex marriage bans fall

Closely examining all of the arguments made by two states to support their bans on same-sex marriage, but ultimately dismissing them as “implausible,” the U.S. Court of Appeals for the Seventh Circuit on Thursday afternoon struck down the bans in Indiana and Wisconsin.  It thus became the third federal appeals court to reach that result; so far, no federal court at that level has upheld a ban in the wake of last year’s Supreme Court decision in United States v. Windsor.

The next ruling from a federal appeals court is expected from the U.S. Court of Appeals for the Sixth Circuit, which has under consideration laws against same-sex marriage in the four states within its geographic area:  Kentucky, Michigan, Ohio, and Tennessee.  That decision could come at any time.  Other federal appeals courts have already struck down bans in Oklahoma and Utah (the Tenth Circuit), as well as Virginia (the Fourth Circuit).

The Seventh Circuit’s combined ruling in Baskin v. Bogan (the Indiana case) and Wolf v. Walker (the Wisconsin case) took a markedly different approach from that employed in many of the federal courts’ rulings against bans on same-sex marriage.  It had as much philosophical and sociological content as legal analysis, and it used a good measure of sarcasm about and even something close to disdain for the two states’ arguments.  Although decided by a three-judge panel, it had the distinctive style of its author, Circuit Judge Richard A. Posner, a jurist with a sharp wit, a devotion to scholarship, and an eclectic range of public policy interests, many non-judicial.

In this opinion, he even made use of the writings of the nineteenth-century English political philosopher and social commentator, John Stuart Mill, in dismissing the states’ arguments that many people find same-sex relationships repulsive.

As for legal arguments, the Posner opinion decided only the claim of discrimination in the two states’ bans on same-sex marriage and thus stayed away from the debate that figured in many cases about whether such bans violated a fundamental right — keyed to due process guarantees — for same-sex couples to enter marriage equally with opposite-sex couples.

In finding that the two states’ laws do discriminate against same-sex couples, the Seventh Circuit’s ruling avoided applying a more demanding constitutional test, concluding that the bans at issue were “irrational and therefore unconstitutional.”  The “rational basis” test is the mode of analysis that is most generous to challenged to state laws.

Indiana has banned same-sex marriages by state law since 1997; it does not have a ban in its state constitution.  Wisconsin voters approved a ban in their state constitution in 2006, by a margin of fifty-nine to forty-one percent.

The decision against both states’ bans contained no discussion of when the ruling would take effect, and thus left open the prospect that officials from the two states could seek a postponement so that they could pursue the option of going to the Supreme Court.

Meanwhile, at the Supreme Court, state officials in Virginia urged the Justices to consolidate all three of the pending petitions for review of that state’s ban, struck down by the Fourth Circuit .

“The most sensible course of action is not to pick and choose but to grant all three Virginia petitions and consolidate them for briefing and argument,” the new brief said, adding that each of the parties appealing the case “brings something of value to making the Virginia case an ideal vehicle for deciding” the basic questions of state power to prohibit same-sex marriage or to refuse to officially recognize existing same-sex marriages.

The filing of the state’s response brief may go far toward completing the filings necessary for the Court to consider the Virginia case, perhaps as early as its scheduled Conference on September 29, in advance of the formal opening of the new Term.


Recommended Citation: Lyle Denniston, Indiana, Wisconsin same-sex marriage bans fall, SCOTUSblog (Sep. 4, 2014, 8:09 PM),