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NCLR Seeks Supreme Court Review of Arkansas Birth Certificate Decision

Posted on: February 15th, 2017 by Art Leonard No Comments

The National Center for Lesbian Rights (NCLR) filed a petition for certiorari with the U.S. Supreme Court on February 13, seeking review of the Arkansas Supreme Court’s decision that the state was not required under Obergefell v. Hodges, 135 S. Ct. 2584 (2015), to extend the presumption of parentage to the same-sex spouse of a birth mother for purposes of recording parentage on a birth certificate. Smith v. Pavan, 2016 WL 7156529 (Ark. December 8, 2016), petition for certiorari filed sub nom. Pavan v. Smith, No. 16-992.

The Arkansas Supreme Court’s decision, by a sharply divided court with three strong dissenting opinions, was the first ruling on this question to depart from a post-Obergefell consensus of courts in other jurisdictions that equal marriage rights for same-sex couples necessarily include the equal right to have a spouse recorded as a parent on a birth certificate, despite the lack of a “biological” tie to the child, especially in light of the common practice of automatically recognizing a birth mother’s husband for that purpose, regardless whether he is “biologically related” to the child.

The due process and equal protection issues raised by the Arkansas court’s decision are stark, raising the possibility that the Supreme Court might consider this an appropriate case for a summary reversal, similar to its decision last term to summarily reverse the Alabama Supreme Court’s refusal to accord full faith and credit to a same-sex second parent adoption approved by a Georgia family court in V.L. v. E.L., 136 S. Ct. 1017 (March 7, 2016).  In V.L. the Court moved quickly to reverse the state supreme court ruling based on the certiorari filings, seeing no need for full briefing and hearing on the merits.  That ruling was announced several weeks after the death of Justice Scalia by the eight-member Court, and brought no dissent from any justices, three of whom had dissented in Obergefell.  They implicitly agreed that with Obergefell as a precedent, there was no justification for recognizing any exception to the general rule that adoption decrees are to be recognized when the court granting the adoption clearly had jurisdiction over the parties and the subject matter of the adoption petition.  They rejected the Alabama Supreme Court’s reliance on its own interpretation of the Georgia adoption statute as withholding “jurisdiction” from the family court to grant such an adoption.

NCLR petitioned on behalf of two married same-sex couples – Marisa and Terrah Pavan and Leigh and Jana Jacobs. Each couple had married out of state and then, living in Arkansas, had a child conceived through donor insemination.  In both cases, the mothers completed the necessary paper work to get a birth certificate when their children were born.  In both cases, the state health department issued a certificate naming only the birth mother and leaving the space for “father” blank on the birth certificate rather than naming the other mother.  The state insisted that under its statute the automatic listing was limited to a husband of the birth mother.

The women filed suit against the director of the state health department, Dr. Nathaniel Smith, seeking to compel issuance of appropriate birth certificates, together with another couple who were not married when they had their child but who subsequently married after the Obergefell decision and sought an amended birth certificate.  That other couple is no longer in the case, having gone through an adoption proceeding and obtained a new birth certificate naming both mothers.  The Arkansas state trial court construed Obergefell and its own marriage equality decision, Wright v. Smith, to require according equal recognition to same-sex marriages for this purpose, and ordered the state to issue amended birth certificates accordingly.  The trial court refused to stay its decision pending appeal, so the certificates were issued.

The Arkansas Supreme Court reversed, even though the state conceded at oral argument that in light of its statute requiring that a husband be listed on a birth certificate regardless whether he was biologically related to the child the state’s position was inconsistent with its own practice. Indeed, the state conceded at oral argument that it had no rational basis for treating same-sex and different-sex spouses differently for this purpose.  However, the state insisted that it was refusing to list same-sex spouses consistent with its gender-specific statute because the birth certificate was necessary to establish the identity of biological parents for public health reasons.  This was a patently absurd argument in light of the various circumstances under Arkansas law where non-biological fathers are listed on birth certificates.

The dissenting judges pointed in various ways to the Obergefell decision, which actually listed birth certificates as one of the issues related to marital rights that helped explain why the right to marry was a fundamental right.  Furthermore, as the certiorari petition points out in detail, the very question raised by this case was specifically part of the Obergefell case, as the underlying state cases that were consolidated into the appeal argued at the 6th Circuit and the Supreme Court included plaintiffs who were married lesbian couples seeking to have appropriate birth certificates for their children.  In those cases, the certificates had been denied by states that refused to recognize the validity of the mothers’ out-of-state marriages.  Thus, the Supreme Court’s reference to birth certificates was part of the issue before the Court, not merely illustrative of the reasons why the Court deemed the right to marry fundamental, and in holding that states were required to recognize same-sex marriages validly performed in other states, the Court was incidentally addressing the refusal of states in the cases before the Court to recognize petitioners’ marriages for purposes of recording the names of parents on birth certificates!

Thus, the Arkansas Supreme Court majority was clearly wrong in asserting that the Obergefell decision did not address this issue and pertained only to the question whether same-sex couples had a right to marry.  Given biological facts, lesbian couples having children through donor insemination are exactly similarly situated with different-sex couples having children through donor insemination, as in both cases the spouse of the birth mother is not the biological parent of the child.  By the logic of Obergefell, denial of such recognition and marital rights offends both due process and equal protection guarantees of the 14th Amendment.  And, as the Petition points out, such denial relegates same-sex marriages to a “second tier” treatment, which was condemned by the Supreme Court in United States v. Windsor, 133 S. Ct. 2675 (2013), when it ruled that the federal government was required to extend equal recognition to same-sex marriages validly contracted under state laws.  In both cases, the Supreme Court rejected the argument that the inability of same-sex lesbian couples to conceive children without a sperm donor provided a rational basis to deny recognition to their marriages or treat them differently from the marriages of heterosexual couples.

NCLR attorneys on the Petition including Legal Director Shannon Minter and staff attorneys Christopher Stoll and Amy Whelan. Arkansas attorney Cheryl Maples is listed as local counsel.  Cooperating Attorneys from Ropes & Gray LLP (Washington and Boston offices) on the Petition include Molly Gachignard, Christopher Thomas Brown, Justin Florence, Joshua Goldstein and Daniel Swartz, with prominent R&G partner Douglas Hallward-Driemeier as Counsel of Record for the case.  Hallward-Driemeier successfully argued the marriage recognition issue before the U.S. Supreme Court in Obergefell v. Hodges.  GLAD attorney Mary Bonauto from Boston argued the right to marry issue in Obergefell.

Federal Court Enjoins Enforcement of Mississippi’s Ban on Adoptions by Married Same-Sex Couples

Posted on: April 1st, 2016 by Art Leonard No Comments

 

Finding that the ability of a couple to adopt a child is a “benefit” of marriage, U.S. District Judge Daniel P. Jordan, III, ruled on March 31 in Campaign for Southern Equality v. Mississippi Department of Human Services, 2016 U.S. Dist. LEXIS 43897 (S.D. Miss.), that Mississippi’s statutory ban on adoptions by same-sex couples probably violates the 14th Amendment under the Supreme Court’s ruling in Obergefell v. Hodges.  Although Judge Jordan found that some of the plaintiffs and many of the defendants had to be dismissed from the case on grounds of standing and jurisdiction, he concluded that other plaintiffs did have standing to challenge the law in court, and that the Executive Director of the state’s Department of Human Services was an appropriate defendant to be ordered on behalf of the state not to enforce the ban while the lawsuit is pending.  The ruling came as the state’s legislature was putting finishing touches on a so-called religious-freedom bill intended to protect persons or businesses with religious objections to same-sex marriage or sex relations between anyone other than a man and a woman united in marriage from any adverse consequences at the hand of the government or any liability for refusing to provide goods or services in connection with same-sex marriages.  The constitutionality of such a measure is much disputed in light of Obergefell.

Among the plaintiffs are same-sex couples who sought second-parent adoptions of children born to one member of the couple by her same-sex partner, and same-sex couples who sought to adopt children not biologically related to either of them through the foster care system. The court found that one of the couples was not married at the time the complaint was filed, and dismissed them from the case for lack of standing, since the state denies adoptions to all unmarried couples, whether same-sex or different-sex.  However, the court concluded that all of the remaining couples had standing to challenge the statutory ban in court, since an employee of the Department had told one of the couples in response to an inquiry about the foster-care route that the Department would continue enforcing the ban despite the Supreme Court’s June 26, 2015, ruling in Obergefell v. Hodges, which held that states are required under the 14th Amendment to allow same-sex couples to marry and to accord official recognition to same-sex marriages contracted in other jurisdictions. The organizational plaintiffs, Campaign for Southern Equality and Family Equality Council, met the test for associational standing by alleging that they had members who were married same-sex couples in Mississippi with interests in adoption similar to the named plaintiffs.

The court found, however, that neither the governor nor the attorney general were appropriate defendants, since neither of those state officials plays any role in administering the adoption system. On different grounds, the court dismissed from the case several judges who were named as defendants, finding that judges whose role is to adjudicate cases are not “adverse parties” to plaintiffs seeking to invalidate a state statute.  The Department of Human Services could not itself be sued, as the 11th Amendment as construed by the Supreme Court gives state agencies general immunity from being sued by citizens of the state in federal court for violations of constitutional rights.  However, the Supreme Court has allowed a “work around” for that constitutional barrier, by allowing suits against the officials charged with the direction of an agency that plays a role in the enforcement of a challenged statute.  Judge Jordan found that the Department plays a significant role in administering the foster care system and in investigating adoption petitions and making recommendations to the courts, and thus the Director of the Department would be an appropriate defendant.  While noting that the Department has stated recently that it would not stand in the way of a same-sex couple adopting a child, the court found there was sufficient evidence in the record that same-sex couples continue to be discouraged from applying for the foster care program to discount this statement for purposes of determining who can be sued in this case, stating that “the record before the Court indicates that [the Department] has interfered with same-sex adoptions after Obergefell.”

Turning to the merits of the plaintiffs’ motion for a preliminary injunction, the court had to confront the doctrinal mysteries of Justice Anthony Kennedy’s opinion for the Supreme Court in Obergefell.  While that opinion makes clear that the right to marry as such is a fundamental right under the Due Process Clause of the 14th Amendment, and that exclusion of same-sex couples from marrying violates that fundamental right, the Court never directly addressed the question of what level of judicial review might be appropriate for claims that a same-sex couple is being denied any particular benefit of marriage, which would determine what kind of justification a state would have to present for treating same-sex couples differently from different-sex couples.

“While the majority’s approach [in Obergefell] could cause confusion if applied in lower courts to future cases involving marriage-related benefits,” wrote Jordan, “it evidences the majority’s intent for sweeping change.  For example, the majority clearly holds that marriage itself is a fundamental right when addressing the due-process issue.  In the equal-protection context, that would require strict scrutiny.  But the opinion also addresses the benefits of marriage, noting that marriage and those varied rights associated with it are recognized as a ‘unified whole.’  And it further states that ‘the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefit afforded to opposite-sex couples %and% are barred from exercising a fundamental right.’”

“Of course the Court did not state whether these other benefits are fundamental rights or whether gays are a suspect class,” Judge Jordan continued. “Had the classification not been suspect and the benefits not fundamental, then rational-basis review would have followed.  It did not.  Instead, it seems clear the Court applied something greater than rational-basis review.  Indeed, the majority never discusses the states’ reasons for adopting their bans on gay marriage and never mentions the word ‘rational.’”  Thus, from a doctrinal standpoint, the Obergefell opinion is in some sense incomplete.  But it was not puzzling enough to deter Judge Jordan from moving ahead to the logical result.

“While it may be hard to discern a precise test,” he wrote, “the Court extended its holding to marriage-related benefits – which includes the right to adopt. And it did so despite those who urged restraint while marriage-related benefits cases worked their way through the lower courts.  According to the majority, ‘Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage.’”  Judge Jordan noted Chief Justice John Roberts’ response to this point in his dissenting opinion, including his contention that as a result of the Court’s ruling “those more selective claims will not arise now that the Court has taken the drastic step of requiring every State to license and recognize marriage between same-sex couples.”  (In all these quotations from Obergefell, the emphases were added by Judge Jordan.)

“In sum,” wrote Jordan, “the majority opinion foreclosed litigation over laws interfering with the right to marry and ‘rights and responsibilities intertwined with marriage.’ It also seems highly unlikely that the same court that held a state cannot ban gay marriage because it would deny benefits – expressly including the right to adopt – would then conclude that married gay couples can be denied the very same benefits.”  The conclusion is obvious: Obergefell decides this case.  “The majority of the United States Supreme Court dictates the law of the land,” wrote Jordan, “and lower courts are bound to follow it,” which means the Mississippi statutory ban on same-sex couples adopting children violates the Equal Protection Clause.

In his March 31 decision Judge Jordan was not rendering a final ruling on the merits, but rather responding to the plaintiffs’ motion for a preliminary injunction against enforcement of the statutory ban while the case continues. The first step of determining whether plaintiffs can get their injunction requires the court to determine whether they are likely to win on the merits, and the foregoing discussion was directed to that point.  Next Jordan considered whether allowing the ban to continue would inflict irreparable harm on the plaintiffs, which is simply answered by noting that monetary damages could not compensate a delay in being allowed to adopt a child and that a denial of equal protection of the laws is always considered an irreparable injury.  Since the current position of the Department is that “it will not impede an otherwise valid gay adoption,” it was clear that the “balance of harms” between the parties favors plaintiffs, as does the factor of how the public interest would be affected by granting or denying an injunction.  Thus, the court concluded that an injunction should be issued.  “The Executive Director of DHS is hereby preliminarily enjoined from enforcing Mississippi Code section 93-17-3(5),” ordered the court.  There was no immediate word whether the state would attempt to appeal this grant of preliminary relief.  Perhaps the court’s opinion will suffice to convince state officials that “marriage equality” as decreed by the Supreme Court means equality in all respects, invalidating any state law or policy that would treat same-sex married couples differently from different-sex married couples.

Since Obergefell dealt with benefits of marriage and did not rule on the rights, if any, of unmarried same-sex couples, it would not provide a direct precedent concerning attempted second-parent adoptions or adoptions out of foster care by unmarried same-sex couples, which is why one of the plaintiff couples was dismissed from the case, even though they informed the court that they had married after the complaint was filed.  And it would be difficult to argue that unmarried same-sex couples are “similarly situated” to married couples in relation to the adoption of children, at least for purposes of an Equal Protection challenge.  Everybody involved in the case, it appears, agrees that the sole issue is whether the challenged statute can be used to deny married same-sex couples a benefit afforded to married different-sex couples.

Lead attorney for the plaintiffs is Roberta “Robbie” Kaplan, a partner in the New York City office of Paul, Weiss, Rifkind, Wharton & Garrison, who also represented Campaign for Southern Equality in its successful legal challenge to Mississippi’s ban on same-sex marriage and Edith Windsor in her successful legal challenge to Section 3 of the Defense of Marriage Act.

Unanimous 7th Circuit Panel Strikes Down Wisconsin and Indiana Same-Sex Marriage Bans

Posted on: September 4th, 2014 by Art Leonard No Comments

Less than two weeks after roughing up attorneys for the states of Wisconsin and Indiana in a heated oral argument, a three-judge panel of the Chicago-based U.S. Court of Appeals for the 7th Circuit issued a unanimous decision in Baskin v. Bogan, 2014 WL 4359059  (September 4, 2014), striking down the bans on same-sex marriage in those states.  Writing for the panel, Circuit Judge Richard Posner, one of Ronald Reagan’s earliest judicial appointees in 1981, decisively rejected all the states’ arguments in support of their anti-marriage laws, stating that “the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.”

With stays pending appeal in effect in both states, the 7th Circuit ruling did not effect any immediate practical change.  Both states promptly signified that they would petition the Supreme Court for review.

Judge Posner’s forty-page opinion was telegraphed by his questioning during the oral argument, for the issues that he raised and pressed repeatedly dominate his written analysis.  His first questions to the attorney for Indiana concerned the welfare of children — the children being raised by same-sex couples in Indiana whom the state prohibits from marrying and whose out-of-state marriages are denied legal recognition.  And his opinion starts in much the same way: “Formally these cases are about discrimination against the small homosexual minority in the United States.  But at a deeper level, as we shall see, they are about the welfare of American children.  The argument that the states press hardest in defense of their prohibition of same-sex marriage is that the only reason government encourages marriage is to induce heterosexuals to marry so that there will be fewer ‘accidental births,’ which when they occur outside of marriage often lead to abandonment of the child to the mother (unaided by the father) or to foster care.  Overlooked by this argument is that many of those abandoned children are adopted by homosexual couples, and those children would be better off both emotionally and economically if their adoptive parents were married.”

During the oral argument, all three judges on the panel (Posner being joined by Obama appointee David Hamilton and Clinton appointee Ann Claire Williams) were skeptical about treating this as a “fundamental right to marry” case, expressing concern about how such a right could be described in a way that would not open up arguments about a constitutional right to polygamy or incest.  Unlike the panel majorities in the 4th and 10th Circuits, who based their marriage equality rulings on the fundamental rights theory, the 7th Circuit panel preferred to take the equal protection route.  That yielded a double hit from this opinion: Not only did the court hold that the states had no rational basis for denying marriage to same-sex couples, but it also ruled, in line with a decision earlier this year by the San Francisco-based 9th Circuit, that claims of anti-gay discrimination by the government are subject to heightened scrutiny, placing the burden on the government to show that its discriminatory law significantly advances an important government policy.

Most importantly, however, Posner’s opinion for the panel is sheer fun to read because of his plain-speaking, cut-through-the-cant style of dealing with ridiculous arguments.  When he finds an argument ridiculous, he does not politely abstain from commenting, in the manner of some of his more restrained judicial colleagues.  He cuts to the chase and calls ’em as he sees ’em.  Herewith some choice examples:

“Our pair of cases is rich in detail but ultimately straight-forward to decide.  The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction — that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended — is so full of holes that it cannot be taken seriously.”

“Because homosexuality is not a voluntary condition and homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world, the disparagement of their sexual orientation, implicit in the denial of marriage rights to same-sex couples, is a source of continuing pain to the homosexual community.”

“It is apparent that groundless rejection of same-sex marriage by government must be a denial of equal protection of the laws, and therefore that Indiana and Wisconsin must to prevail establish a clearly offsetting governmental interest in that rejection.  Whether they have done so is really the only issue before us, and the balance of this opinion is devoted to it — except that before addressing it we must address the states’ argument that whatever the merits of the plaintiffs’ claims, we are bound by Baker v. Nelson to reject them. . .  Baker was decided in 1972 — 42 years ago and the dark ages so far as litigation over discrimination against homosexuals is concerned.  Subsequent decisions such as Romer v. Evans, Lawrence v. Texas, and United States v. Windsor are distinguishable from the present two cases but make clear that Baker is no longer authoritative.  At least we think they’re distinguishable.  But Justice Scalia, in a dissenting opinion in Lawrence, joined by Chief Justice Rehnquist and Justice Thomas, thought not.  He wrote that ‘principle and logic’ would require the Court, given its decision in Lawrence, to hold that there is a constitutional right to same-sex marriage.”

Nothing like enlisting Scalia on your side in a gay rights decision. . .

After extensively criticizing Indiana’s “channeling-procreation” argument and pointing out its inconsistency with the state’s convoluted rules concerning marriages between elderly first cousins, Posner focused on the “irresponsible procreation” argument, and observed:  “Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combinations of sticks and carrots) to marry, but that gay couples, unable as they are to produced children unwanted or wanted, are model parents — model citizens really — so have no need for marriage.  Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry.  Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry.  Go figure.”

He also points out that if Indiana and Wisconsin are trying to reduce out-of-wedlock births by denying marriage to same-sex couples, their strategy is not working, citing statistics showing the rate of children born in such circumstances went up in each state after they adopted explicit bans on same-sex marriage.  He also pointed out that gay couples are more likely to adopt children than straight couples, and many of those children will be the out-of-wedlock children surrendered for adoption by single mothers.  “If the fact that a child’s parents are married enhances the child’s prospects for a happy and successful life, as Indiana believes not without reason,” he wrote, “this should be true whether the child’s parents are natural or adoptive.  The state’s lawyers tell us that ‘the point of marriage’s associated benefits and protections is to encourage child-rearing environments where parents care for their biological children in tandem.’ Why the qualifier ‘biological’?  The state recognizes that family is about raising children and not just about producing them.  It does not explain why the ‘point of marriage’s associated benefits and protections’ is inapplicable to a couple’s adopted as distinct from biological children.”

He suggested that letting same-sex couples raising adopted children marry would provide emotional comfort to their children.  “Suppose such a child comes home from school one day and reports to his parents that all his classmates have a mom and a dad, while he has two moms (or two dads, as the case may be).  Children, being natural conformists, tend to be upset upon discovering that they’re not in step with their peers.  If a child’s same-sex parents are married, however, the parents can tell the child truthfully that an adult is permitted to marry a person of the opposite sex, or if the adult prefers as some do a person of his or her own sex, but that either way the parents are married and therefore the child can feel secure in being the child of a married couple.  Conversely, imagine the parents having to tell their child that same-sex couples can’t marry, and so the child is not the child of a married couple, unlike his classmates.”

Judge Posner took apart the argument by Wisconsin’s lawyer that “tradition” justifies the marriage ban.  “Tradition per se has no positive or negative significance,” he wrote.  “There are good traditions, bad traditions pilloried in such famous literary stories as Franz Kafka’s ‘In the Penal Colony’ and Shirley Jackson’s ‘The Lottery,’ bad traditions that are historical realities such as cannibalism, foot-binding, and suttee, and traditions that from a public-policy standpoint are neither good nor bad (such as trick-or-treating on Halloween).  Tradition per se therefore cannot be a lawful ground for discrimination — regardless of the age of the tradition.”  He went on to quote the same passage from Oliver Wendell Holmes that the late Justice Harry Blackmun cited in his dissent from the infamous 1986 Supreme Court sodomy case, Bowers v. Hardwick: “Holmes thought it ‘revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.”  Posner helpfully added that the English King Henry IV died in 1413.  To show the age of the tradition underlying this marriage ban, he went on to quote Leviticus 18:22, and concluded on this point, “If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a harmless anachronism; it is a violation of the equal protection clause.”

Responding to Wisconsin’s argument about “thousands of years of collective experience” showing that different-sex marriage is “optimal for the family, society, and civilization,” Posner pointed out that Wisconsin provided no evidence in support of this claim, and then he listed several countries that today allow polygamy, adding, in a little flourish, “parts of Utah.”  “But suppose the assertion is correct?” he asked.  “How does that bear on same-sex marriage?  Does Wisconsin want to push homosexuals to marry persons of the opposite sex because opposite-sex marriage is ‘optimal?’  Does it think that allowing same-sex marriage will cause heterosexuals to convert to homosexuality?  Efforts to convert homosexuals to heterosexuality have been a bust; is the opposite conversion more feasible?”

As to the contention that allowing same-sex marriage will harm society, Posner pointed to estimates of the gay population ranging from 1.5% to 4%, and concluded: “Given how small the percentage is, it is sufficiently implausible that allowing same-sex marriage would cause palpable harm to family, society, or civilization to require the state to tender evidence justifying its fears; it has provided none.”  He pointed out that the states had provided no evidence that “any heterosexuals have been harmed by same-sex marriage,” and observed that even though some people might be “distressed by the idea or reality of such marriage,” this could not count as a harm that would justify the ban.  Even though many people disapproved of or were offended by interracial marriage and sodomy, the Supreme Court struck down laws against both.

As to the argument by Indiana and Wisconsin that the popularly enacted marriage amendments should enjoy some immunity from constitutional attack, Posner responded: “Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.”

Although the court found no rational basis for the marriage bans, and thus could have avoided ruling on whether sexual orientation discrimination merits heightened scrutiny, Posner took that issue on, rejecting the states’ arguments that gay people are a political powerful group that needs no help from the courts.  The marriage amendment passed in Wisconsin would surely argue otherwise.  Posner emphasized the history of anti-gay discrimination — which he characterized during oral argument as “savage”, the extensive scientific literature on the issue of immutability, and the lack of relevance of sexual orientation to a person’s ability to contribute to society, finding that all the factors for finding a “suspect classification” applied to sexual orientation.  While not strictly necessary to support the court’s ruling, this finding may be very useful in future cases in the 7th Circuit challenging discriminatory state policies.

With this opinion, three federal courts of appeals have ruled in favor of marriage equality, and it is widely predicted that the 9th Circuit will add to that number after hearing arguments on September 8.  Less certain is the outcome in the Cincinnati-based 6th Circuit, which heard arguments weeks before the 7th Circuit but has yet to issue its opinion.  (Posner is a notoriously fast writer of judicial opinions, and this one bears the hallmarks of haste, including one page where some lines of text seem to have been omitted from the opinion as first released by the court.)  Appeals are now pending in the 5th Circuit, where Texas has appealed a pro-marriage equality ruling and plaintiffs are about to appeal an absurdly reasoned federal anti-marriage ruling from Louisiana.  On the same day the 7th Circuit ruled, Florida Attorney General Pamela Bondi announced that she had filed a notice of appeal with the 11th Circuit from a recent federal court marriage equality ruling in that state.  There will be no marriage equality rulings from the 2nd or 3rd Circuits, as every state in both circuits already allows same-sex couples to marry, either by legislation or court order.  The Boston-based 1st Circuit might still be heard from; even though all the states in the circuit have marriage equality, its jurisdiction also covers Puerto Rico, where a lawsuit challenging the commonwealth’s marriage ban is pending.  The 8th Circuit, where cases are pending in several district courts, has yet to be heard from in the current round of litigation, although it rejected a challenge to Nebraska’s marriage amendment in 2006.   The 7th Circuit’s ruling brings closer the possibility that marriage equality might be achieved nationwide through circuit court opinions without Supreme Court intervention, if that court were to let petitions accumulate and denying them all once the boards have been swept clean.  But one dissenting circuit would virtually guarantee Supreme Court review.

Attorneys from Lambda Legal and the Indiana and National ACLU argued the case for plaintiffs before the 7th Circuit, while the states of Indiana and Wisconsin were represented by the Indiana Solicitor General and a Wisconsin Assistant Attorney General.  It seems likely that the Republican governors of both states will petition the Supreme Court for review, although Wisconsin’s governor has been less outspoken than Indiana’s in opposition to same-sex marriage.  Wouldn’t it be grand if both read Posner’s extremely persuasive opinion and followed the example of Pennsylvania’s Republican governor in dropping further appeals?