Acting with unusual swiftness, a federal appeals court in Chicago upheld on Thursday lower court decisions that found same-sex marriage bans in Indiana and Wisconsin unconstitutional, blasting arguments in favor of the bans as “so full of holes” that they were laughable.
The decision by the 7th Circuit U.S. Court of Appeals, coming just nine days after oral arguments were held, joined the tide of recent cases across the nation declaring same-sex marriage bans discriminatory.
But while the ruling marked a clear-cut victory for gay rights, nothing will immediately change in either Wisconsin or Indiana for same-sex couples. Both states vowed to appeal to the U.S. Supreme Court, adding to a growing list of cases from other states with pending petitions before the nation’s highest court.
Still, for Amy Sandler, one of the Indiana plaintiffs in the case, the decision by a three-judge panel struck a chord because it turned a traditional argument in favor of gay marriage bans – that they protect children and the family unit -- on its head.
“We have felt the barrier,” Sandler, who is raising two children with her wife, said in a telephone interview. “I have said in the past (that) cultural shifts usually take place after legal decisions, so this legal decision is an incredibly important step toward what I hope will be a cultural change as my children grow up.”
Opponents of same-sex marriage also reacted swiftly. Tony Perkins, president of Family Research Council, a Christian public policy group based in Washington, D.C., said in a statement he was “very troubled” that the court failed to recognize the “self-evident truth that children need and deserve a mom and dad.”
“The ruling doesn't appear to allow society to choose to maintain a coherent definition of marriage,” Perkins said. “The courts have no true constitutional authority to unilaterally change the definition of our most fundamental social institution.”
The decision on the hot-button issue came with surprising speed following oral arguments just last week. The 7th Circuit often takes months to rule. The court, for instance, has yet to issue a decision on former Gov. Rod Blagojevich’s appeal of his corruption conviction more than eight months after arguments were held.
Officials in Indiana and Wisconsin had appealed lower federal court decisions that found the bans unconstitutional. Their arguments turned largely on the needs of their states to regulate marriage as an institution, one linked directly to the ability to have children.
The strongly worded opinion written by Judge Richard Posner echoed his pointed questioning during the arguments on Aug. 26. He described the gay and lesbian community as among the most “misunderstood, and discriminated-against minorities in the history of the world” and said that the denial of their right to marry has been a source of “continuing pain.”
“Marriage confers respectability on a sexual relationship,” wrote Posner, a Republican appointee. “To exclude a couple from marriage is thus to deny it a coveted status.”
Known for his independence as well as a caustic wit, Posner had particularly harsh words for the argument made by attorneys for Indiana that marriage is intended only for procreation and therefore only heterosexuals should benefit from the perks of matrimony, such as filing taxes jointly. The judge noted that infertile heterosexuals were free to marry – even first cousins.
“Why are they allowed to reap the benefits accorded marriages of fertile couples, and homosexuals are not?” Posner said. He said Indiana had “invented an insidious form of discrimination: favoring first cousins, provided they are not of the same sex, over homosexuals.”
Posner also took both states to task for arguing that the ban on same-sex marriage was a part of the democratic process despite the fact that “homosexuals are politically powerful out of proportion to their numbers.”
“It is to the credit of American voters that they do not support only laws that are in their palpable self-interest,” Posner wrote. “They support laws punishing cruelty to animals, even though not a single animal has a vote.”
Joining Posner in the opinion were Judge Ann Williams and Judge David Hamilton, both Democratic appointees.
The opinion urged the lawyers for the states to “draw up a plan of compliance and submit it” to the district judges for approval. But attorney generals for both states said Thursday they would appeal the ruling to the Supreme Court.
“It seems clear that a final resolution of the constitutional issues involving states’ authority over their marriage licenses will need a decision from our nation's highest court,” Indiana Attorney General Greg Zoeller said in a statement. “Hopefully, for the interests of everyone on both sides of these cases, the Supreme Court will make a ruling sooner rather than later.”
The earliest the high court could decide to hear arguments on any of the cases would be next summer, according to Paul Castillo, an attorney for Lambda Legal who represented some of the Indiana plaintiffs.
In Illinois, gay marriage has been legal since June.
In the decision, Posner wrote that the bans bring harm not only to homosexuals but also to their children -- many of whom are adopted -- because they are denied the financial and psychological benefits of having married parents.
Those comments were particularly meaningful to Sandler since she and her wife, Niki Quasney, once considered this option to start a family. After running into complications with an international adoption, however, the couple opted to have their children with a sperm donor.
But she was especially pleased with Posner’s comments challenging Indiana’s argument that marriage was a way to rein in sexual irresponsibility.
“Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry,” Posner wrote. “Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”
Sandler said she and Quasney, unlike the theoretical heterosexual couple cited by Posner, have made conscious decisions to not only plan a family but also take extra precautions to protect their rights. Sandler, for example, opted to have her second child in Chicago, where civil unions were legal, so Quasney’s name could go on the birth certificate. The couple then took the extra step of having Quasney adopt the child in Indiana as a precaution after being advised by attorneys to do so.
“So much time, energy, finances and emotions were spent,” Sandler said of starting her family. “...And we are so thankful because they are a miracle."