Created on Tuesday, 26 August 2014 Written by MICHAEL TARM, Associated Press
CHICAGO (AP) — Federal appeals judges bristled Tuesday at arguments defending gay marriage bans in Indiana and Wisconsin, with one Republican appointee comparing them to now-defunct laws that once outlawed weddings between blacks and whites.
Supporters of gay marriage in Wisconsin and Indiana attend a rally at the federal plaza Monday, Aug. 25, 2014, in Chicago. The Chicago-based 7th U.S. Circuit Court of Appeals will hear arguments Tuesday on gay marriage fights from Indiana and Wisconsin, setting the stage for one ruling. Each case deals with whether statewide gay marriage bans violate the Constitution. (AP Photo/Charles Rex Arbogast)
As the legal skirmish over same-sex marriage shifted to the three-judge panel of the 7th U.S. Circuit Court of Appeals in Chicago, more than 200 people lined up hoping to get a spot in the hearing room.
Attorneys general in both states are trying to reinstate bans that were ruled unconstitutional in June. The outcome of the case also could directly affect hundreds of couples who were married after federal judges overturned the bans but before their rulings were put on hold pending appeal.
Judge Richard Posner, who was appointed by President Ronald Reagan, was dismissive when Wisconsin Assistant Attorney General Timothy Samuelson repeatedly pointed to 'tradition' as the underlying justification for barring gay marriage.
"It was tradition to not allow blacks and whites to marry — a tradition that got swept away," Posner said. Prohibition of same sex marriage, he said, is "a tradition of hate ... and savage discrimination."
Posner frequently cut off Indiana Solicitor General Thomas Fischer, just moments into his presentation and chided him to answer his questions.
At one point, Posner ran through a list of psychological strains of unmarried same-sex couples, including having to struggle to grasp why their schoolmates' parents were married and theirs weren't.
"What horrible stuff," Posner said. What benefits to society in barring gay marriage, he asked, "outweighs that kind of damage to children?"
The answer has to do with "procreation," Fisher answered.
"All this is a reflection of biology," Fisher said. "Men and women make babies, same-sex couples do not... we have to have a mechanism to regulate that, and marriage is that mechanism."
Some couples whose marriages are in limbo lined up outside the 25th-floor courtroom as early as 5 a.m. Among them was Ruth Morrison, a retired Indianapolis Fire Department battalion chief. She noted that because Indiana won't recognize the woman she married in another state as her wife, she wouldn't be able to pass on pension and other benefits if she dies.
"Now Indiana tells us our promises are only good if our spouses are of the opposite sex," Morrison, wearing a fire department uniform, said during a rally ahead of the hearing Monday night.
Lawyers representing both states, along with attorneys for the American Civil Liberties Union and Lambda Legal, a national group working for gay rights, were allotted 20 minutes each to argue their case.
Besides Posner, the judges who heard the case were Ann Claire Williams, a Bill Clinton appointee, and David Hamilton, appointed by President Barack Obama. It's unclear when the court might issue a ruling.
Gay marriage is currently legal in 19 states as well as the District of Columbia, and momentum is building for more states to recognize it. Advocates have won more than 20 court victories around the country since the U.S. Supreme Court struck down a portion of the Defense of Marriage Act that prohibited the federal government from recognizing same-sex marriage in 2013.
A voter-approved constitutional amendment bans gay marriage in Wisconsin. State law prohibits it in Indiana. Neither state recognizes same-sex marriages performed elsewhere.
The ACLU filed a lawsuit challenging Wisconsin's ban in February, while Lambda Legal filed its lawsuit challenging Indiana's ban in March. The lawsuits raised similar arguments on behalf of several gay and lesbian plaintiffs, contending that the bans violate the U.S. Constitution's equal protection guarantee.
U.S. District Judge Barbara Crabb struck down Wisconsin's ban on June 6, and more than 500 gay and lesbian couples got married before Crabb put her ruling on hold a week later pending an appeal by Wisconsin Attorney General J.B. Van Hollen.
In Indiana, U.S. District Judge Richard Young threw out the state's prohibition on June 25. Hundreds of couples in that state got married before the 7th Circuit stayed his ruling two days later.
Van Hollen and Indiana Attorney General Greg Zoeller, both Republicans, have raised similar arguments. They say their states have the authority to set marriage standards, and that the federal government should defer to them.
Van Hollen noted that Wisconsin has traditionally defined marriage as a union between a man and woman. Zoeller has maintained that his state has a legitimate interest in promoting traditional marriage as a means of encouraging environments where biological parents raise their children.
"There is no due process or equal protection right to have one's out-of-state same-sex marriage recognized at home, and no due process or equal protection right to same-sex marriage outright," Zoeller's attorneys argued in a recent court filing.
The ACLU and Lambda Legal have essentially reiterated their equal protection arguments in appeals court filings, arguing that the bans deny gay couples state and federal legal protections and benefits that married straight couples enjoy.
"The freedom to marry is a core aspect of personal liberty for all Americans," the ACLU said in its briefs.
There was some levity during the hearing. As Samuelson struggled to offer a specific reason for how gay marriage bans benefit society, he suddenly noted a yellow courtroom light signaling his allotted time was up.
"It won't save you," Williams told him, prompting laughter in court.
Samuleson smiled, saying "it was worth a try."
Associated Press writer Todd Richmond contributed to this report from Madison, Wisconsin.