Appeals Judges Get Tough on Defenders of Ind., Wis. Marriage Bans

Federal appeals court judges posed tough questions today to attorneys defending Wisconsin’s and Indiana’s same-sex marriage bans, leading marriage equality supporters to be optimistic.

A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit heard arguments in several combined cases this morning in Chicago, and “Judge Richard Posner waited just seconds before interrupting the solicitor general from Indiana, beginning a line of questioning about why children of same-sex couples should not be allowed to have legally married parents, as do children of heterosexual couples,” the Chicago Tribune reports.

“Wouldn’t the children want their parents to be married?” Posner asked. “What do you think is psychologically better for the child?” There are thousands of children in foster care in Indiana awaiting adoption, he noted.

Indiana solicitor general Thomas Fisher defended the state’s ban on same-sex marriage on the basis that heterosexual couples procreate. “Men and women create babies and there has to be a social mechanism to deal with that,” he said.

Indiana’s and Wisconsin’s bans have both been struck down as unconstitutional by U.S. district courts, and numerous same-sex couples were married in both states before those rulings were put on hold pending appeal.

Wisconsin assistant attorney general Timothy Samuelson defended his state’s law as “tradition,” and the judges pressed him to explain why that was sufficient legal justification. When Samuelson also advanced the argument that heterosexual marriage promotes procreation and motivates couples to stay together, Judge David F. Hamilton said, “I suppose you know how that’s been working out in practice,” presumably alluding to the high divorce rate in the U.S.

Today’s proceedings made Amy Sandler, a plaintiff in the Indiana case, feel “hopeful,” she told the Tribune. “I felt it was moving in the direction of the rest of the country,” she said of the court. Indiana is recognizing her marriage to Niki Quasney, which took place last year in Massachusetts, under a court order due to Quasney’s life-threatening illness.

Kyle Megrath, marriage coordinator for Hoosiers Unite for Marriage, was also optimistic. “It was encouraging ... to hear about how, when we talk about any state’s interest in marriage, it is important that same-sex couples be able to have the same protections for the children that they adopt and mutually agree on deciding to have,” he told the newspaper. “So I think one of the best things about what I heard in there today is there is a state interest in same-sex couples being able to get married.” The judges, he said, “saw weakness” in the anti-equality argument.

It’s not certain when the Seventh Circuit will issue its decision. Since the U.S. Supreme Court struck down a key section of the federal Defense of Marriage Act in June 2013, 38 state and federal courts have ruled for marriage equality, with only one state judge in Tennessee ruling the other way in a private action for divorce, notes advocacy group Freedom to Marry. Every appellate ruling— indeed, every ruling from a federal court — has been in favor of the freedom to marry, including the Utah and Oklahoma cases in the 10th Circuit and the Virginia case in the Fourth Circuit. The Supreme Court is expected to eventually hear at least one of these cases.