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Advocates of Gay Marriage Bans Take Heat from Judges During Arguments in Appellate Court
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Advocates of Gay Marriage Bans Take Heat from Judges During Arguments in Appellate Court

Summary: A three-judge appellate court panel heard arguments from attorneys general for Wisconsin and Indiana on Tuesday. The attorneys general argued for the ban, citing tradition, whereas plaintiffs argued that such a ban is archaic and discriminatory.

In the latest development in the hot topic of gay marriage, reports that arguments for the defense of gay marriage bans in Indiana and Wisconsin were heard in a federal court of appeals on Tuesday. The plaintiffs who filed the suit claim that the bans violate the U.S. Constitution’s Equal Protection Clause. A constitutional amendment bans gay marriage in Wisconsin, whereas state law prohibits the practice in Indiana. Neither state recognizes the same-sex marriages of other states.


Attorneys general for both states sought to have the bans permanently restored. The bans were ruled unconstitutional this past June. The court’s ruling could affect the lives of hundreds who were married after the bans were dismissed by lower courts. The bans were stayed pending the current appeal.

More than 200 people were present to fight for a seat at the hearing held at the 7th Circuit Court of Appeals in Chicago. A three-judge panel heard the arguments. Whereas judges typically take on a “devil’s advocate” role during oral arguments to weigh the legal positions of counsel, the panel was clearly outraged at some points during the arguments—hinting to the public that the bans could be well on their way to being outlawed, much like previous bans on marriages between blacks and whites.

Judge Richard Posner proved the toughest to convince that the bans should remain in place. When Wisconsin Assistant Attorney General Timothy Samuelson repeatedly argued that the bans supported “tradition” and justified a bar on gay marriage, the judge became clearly agitated. “It was tradition to not allow blacks and whites to marry—a tradition that got swept away,” he responded. He added that a prohibition on gay marriage stems from “a tradition of hate…and savage discrimination” of homosexuals. Judge Posner cut off Indiana Solicitor General Thomas Fisher repeatedly, and snapped for the attorney to answer his questions. Posner said it was “horrible” to force children of unmarried same sex couples to attempt to understand why their parents couldn’t be married, while the parents of their friends could.

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Fisher’s response was that “Men and women make babies, same-sex couples do not…we have a mechanism to regulate that, and marriage is that mechanism.” Samuelson chimed in that encouraging opposite sex couples to marry was part of Wisconsin’s goal to reduce the number of children born out of wedlock. Judge David Hamilton quickly responded by pointing out that births to single women rose 53% in Wisconsin and 68% in Indiana from 1990 to 2009.

The appellate panel also grilled the advocates of gay marriage, asking where the line would be drawn as to who could and could not marry. For example, would polygamy become acceptable? American Civil Liberties Union attorney Kenneth Falk responded, “If you have two people, it’s going to look like a marriage…if you have three or four, it doesn’t.”

Ruth Morrison, one of the plaintiffs present at the hearing, stated that because Indiana will not recognize her marriage, she will be unable to pass her pension on to her wife upon her death. “Now Indiana tells us our promises are only good if our spouses are of the opposite sex,” she stated bitterly.

Gay marriage is currently legal in 19 states, as well as the District of Columbia. Same-sex marriage advocates have prevailed in over 20 court victories since the Supreme Court ordered the federal government to recognize state-sanctioned gay marriages in 2013.

Utah and Oklahoma have appealed to the U.S. Supreme Court to determine the legality of the bans. Appellate rulings are pending in Kentucky, Ohio, Michigan, and Tennessee. Hearings are scheduled for Oregon, Nevada, Idaho, and Hawaii in September. A hearing is expected soon in Texas.


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