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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?


Wisconsin Supreme Court Rejects Constitutional Challenge to Domestic Partnership Law

Posted on: July 31st, 2014 by Art Leonard 1 Comment

The seven-member Wisconsin Supreme Court has rejected a state constitutional challenge to the Wisconsin Domestic Partnership Act.  The July 31 ruling in Appling v. Walker, 2014 WI 96, 2014 Wisc. LEXIS 533, in an opinion by Justice N. Patrick Crooks, Jr., held that the state’s marriage amendment, passed in 2006, did not prevent the legislature from creating a legal status for same-sex couples that would carry many, but not all, of the rights of marriage.  The ruling came just weeks after a federal district court ruled in Wolf v. Walker, 2014 WL 2558444 (W.D. Wis. June 6, 2014), that the Wisconsin Marriage Amendment violates the 14th Amendment of the U.S. Constitution, a ruling that the state is now appealing to the Chicago-based 7th Circuit Court of Appeals.  Curiously, Justice Crooks’ opinion for the court did not mention the federal ruling or the recent wave of marriage equality decisions, prompting Chief Justice Shirley S. Abrahamson to write a short concurring opinion “to call the reader’s attention to these developments in the law.”

Although Governor Scott Walker and members of his administration were now the named defendants in the case, he would certainly not consider this ruling a victory, since he and the other state government defendants had filed a motion to withdraw from the case on the ground that his administration, which was not involved in the enactment of the challenged law, agreed with the plaintiffs that it was unconstitutional.  The plaintiffs, proponents of the marriage amendment, had originally filed suit against the previous Democratic administration which had enacted the challenged law.  The lower court had allowed Lambda Legal’s Chicago office to intervene as representatives of Fair Wisconsin Inc. (a gay rights group) and several individual defendants who would sustain tangible losses if their domestic partnerships and attendant benefits were invalidated by the court.

Alliance Defending Freedom, a religious litigation firm, presented the argument for the plaintiffs on appeal, using the same attorney who had defended Virginia’s same-sex marriage ban in the 4th Circuit, Austin Nimocks.  Christopher Clark from Lambda’s Chicago office argued for the intervenor-defendants, with local attorneys Brian Butler, Barbara Neider, and Stafford Rosenbaum LLP of Madison, Wisconsin, participating on the brief.  Dane County’s Corporation Counsel office filed an amicus brief defending the partnership statute as well, and amicus briefs came in from a range of organizations, including the ACLU and the LGBT Chamber of Commerce.

When the Marriage Amendment was passed in 2006, some public employees in Wisconsin were already receiving domestic partnership benefits and such benefits were a hot subject of collective bargaining with unions represented public workers in the state.  The legislature proposed the marriage amendment in reaction to same-sex marriage becoming available in Massachusetts in May 2004, as well as  the prior enactment of a civil union law in Vermont that gave civil union partners a status and panoply of state-law rights substantially similar to marriage.  The amendment, which passed by a comfortable margin (59%-41%), provided that only the union of one man and one woman would be valid or recognized as a marriage in Wisconsin, and that “a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.”

During the amendment campaign, opponents charged that the amendment would end partnership benefits for public employees and would prevent the legislature from passing a civil union act.  Proponents of the amendment, including the lead plaintiff in this case, Julaine K. Appling, countered these arguments by stating that the amendment was not intended to take away benefits from anybody.  They said that the legislature would be free to extend benefits to same-sex couples, so long as they didn’t create a “status” that was identical or substantially similar to marriage.  Both legislative leaders and private sector proponents such as Appling reiterated these points, and accused the opponents of distorting the meaning of the proposed amendment.  In fact, one legislative sponsor of the amendment even stated that the legislature could pass a civil union act, so long as it was not a “Vermont-style” act that provided all the state law rights of marriage.

After the amendment passed, the state government changed hands from Republican to Democratic control.  The new majority enacted the Domestic Partnership Act after carefully considering the limitations imposed by the Marriage Amendment.  Taking the amendments’ proponents at their word, they carefully structured the statute to create a partnership registration system that did not itself confer any rights on partners, and then amended various state laws to extend existing benefits to registered domestic partners.  The partnership system was made available only to same-sex couples, and many rights associated with marriage, such as joint tax filing, were not amended to extent to registered partners, thus preserving substantial differences.

Appling and other proponents of the marriage amendment filed suit, arguing that the statute created a status substantially similar to marriage because “the similarities it shares with marriage are actually ‘the constituent elements that make the legally recognized marital relationship what it is — the component parts of the relationship.”  These component parts they identified as the requirement that a domestic partnership be limited to two people over a certain age, competent to consent, who are in an exclusive relationship of specified sexes and who are not already closely related.  The plaintiffs argued that it was irrelevant that the number of rights and benefits extended to domestic partners were substantially fewer than those afforded married couples, because the Marriage Amendment was concerned with the creation of a “status” that was like marriage in terms of these “component parts.”  The defendants responded that this contradicted what proponents had argued during the election, that the public passed the amendment having been advised that it would not prevent the legislature from granting benefits to same-sex couples, and of course they emphasized the limited number of rights and benefits that went with partnership.  Indeed, with the demise of the Defense of Marriage Act, the difference between domestic partnership and marriage is even greater than it was when the statute was passed, since the federal government will not recognize domestic partnerships for any purpose of federal law.

The trial and intermediate appellate courts both ruled against the plaintiffs, and the Supreme Court unanimously affirmed this result.

The Supreme Court analysis started from the proposition that statutes enjoy a presumption of constitutionality, and the plaintiffs bear a heavy burden to show that the challenged statute is unconstitutional beyond any reasonable doubt.  In addition, the court pays attention to the context in which a measure is adopted, both in figuring out the meaning of constitutional language and the meaning of statutory language.  In this case, the issue was whether domestic partnerships were “substantially similar” to marriages, as the plaintiffs were not arguing that they are identical.

Justice Crooks found that by using the phrase “substantially similar” in the amendment, the drafters intended that “a status that is merely similar is not meant to be prohibited. The plain language of the Amendment,” he continued, “indicates that the framers and the voters intended to prohibit a status that gives a domestic partner a sum total of legal rights, duties, liabilities, and other legal relations that is more than just similar to the sum total of a married person’s legal rights, duties, liabilities, and other legal relations.”

Once the comparison was made, it was clear that the form of domestic partnership enacted in Wisconsin was not “substantially similar” to marriage.  Unlike marriages, registered partnerships are easily dissolved, and they impose none of the duties that marital partners have towards each other for support, mutual obligations for debts and the like.  And the list of rights and benefits for domestic partners, achieved by amending specific statutes to add mention of partners, was small by comparison to the list of marital rights.

“Marriage is unique in that it is an enforceable contract to which the state is a party,” wrote Crooks.  “Marriage carries with it an ‘equal obligation’ that spouses ‘owe to each other mutual responsibility and support.’  Once a couple is married, ‘the law steps in and holds the parties to various obligations and liabilities.’  Chapter 770 [the Domestic Partnership Act] makes no similar demands on domestic partners.  Chapter 770 does not refer to a domestic partnership as a contract; it does not obligate domestic partners to satisfy a duty of ‘mutual responsibility and support.’  While the Plaintiffs argue that this obligation can be read into ch. 770 from the co-habitation requirement, this argument is not persuasive given the specificity with which the legislature has chosen to articulate spousal obligations” under the state’s marriage laws.   Furthermore, neither the federal government nor other states — even those with their own “Vermont-style” partnership laws — accorded any recognition to Wisconsin domestic partners, since their relationship was not deemed equivalent to marriage in any relevant respect.

The plaintiffs had argued that the legislature could have avoided any clash with the Marriage Amendment by omitting the same-sex-only feature from the partnership law, thus allowing any two adults to become domestic partners if they were living together, including parents and children, siblings, and unrelated roommates.  But the court found this to be inconsistent with the positions the plaintiffs had taken during the amendment campaign, and that this was not what the voters had understood to be the purpose of the Marriage Amendment.  Indeed, such a partnership law would probably undermine marriage in the state by providing an alternative status for different-sex couples who wanted a less formal relationship by giving them access to some benefits they could only otherwise obtain through marriage!

The court concluded that the challenge should be rejected on three grounds: the strong presumption of constitutionality, the legislative history of the Marriage Amendment, and also “the legislature’s careful adoption of the first legislative act following the Amendment,” the adoption of the partnership act in its limited form.

If the current litigation surge towards marriage equality continues, this decision may be seen as a bit antiquated in sustaining a partnership law that may quickly be superseded, as signaled by the federal district court’s decision in Wolf v. Walker.  But, in the meantime, the decision, which cannot be appealed further, preserves for Wisconsin domestic partners access to important rights and benefits upon which they have come to rely.

Although Governor Walker was the “loser” in this case, he otherwise scored a big day in the Wisconsin Supreme Court, as the court ruled in other cases to uphold the VoterID law passed by the Republican legislature to suppress voting by minorities, and also upheld the governor’s collective bargaining law, which cut back on the subjects for negotiation by public employee unions, eliminated their ability to get automatic dues payments from represented employees, and required them to go through frequent costly and time-consuming recertification elections in order to maintain their representative status from year to year.  In the end he probably considered that he had a good day at court despite this setback.