CHICAGO — A U.S. appeals court issued a scathing, unequivocal ruling Thursday declaring that gay marriage bans in Wisconsin and Indiana violated the U.S. Constitution — a decision released a little more than a week after oral arguments from a normally slow and deliberative court.
The unanimous, 40-page decision by a three-judge panel of the U.S. 7th Circuit Court of Appeals in Chicago blasted the states’ justifications for their bans, several times singling out the argument that only marriage between a man and a woman should be allowed because it is — simply — tradition.
There are “bad traditions that are historical realities such as cannibalism, foot-binding, and suttee, and traditions that ... are neither good nor bad — such as trick-or-treating on Halloween,” the ruling says. “Tradition per se therefore cannot be a lawful ground for discrimination — regardless of the age of the tradition.”
It also laid into another argument from the states that gays should not be allowed to marry because, on their own, they can’t procreate, saying that rationale “is so full of holes that it cannot be taken seriously.”
Wisconsin Attorney General J.B Van Hollen said he would appeal the ruling to the U.S. Supreme Court.
Same-sex marriage is legal in 19 states and the District of Columbia. Bans that have been overturned in some other states continue to make their way through the courts. Since last year, the vast majority of federal rulings have declared same-sex marriage bans unconstitutional.
The Wisconsin and Indiana cases shifted to Chicago after the states appealed lower court rulings tossing the bans. The 7th Circuit halted those rulings while it considered the cases.
The court’s decision won’t take effect for at least 21 days, said Camilla Taylor, a lawyer for Lambda Legal who argued on behalf of Wisconsin plaintiffs. That should give the states time to ask the Supreme Court to put it on hold, she said.
Between the bans being struck down and the order reinstating them as the appeals process ran its course, hundreds of gay couple in both states rushed to marry.
Gay couples heralded Thursday’s decision.
“It’s huge,” said Johannes Wallmann, whose 2007 marriage in Canada to Keith Borden wasn’t recognized by Wisconsin after the couple moved to Madison. “This provides clarity for us.”
In Indiana, some gathered at an office of the American Civil Liberties Union — whose lawyers represented many of the plaintiffs — after they received an email from one attorney proclaiming, “WE WON!!!”
But others were unhappy.
“Marriage policy should be about protecting the established needs of children and society, not affirming the variable desires of certain political activists,” said Micah Clark, executive director of the American Family Association of Indiana.
The decision came unusually fast for the 7th Circuit — just nine days after oral arguments — suggesting unanimity came easily to the panel. The court’s decisions typically take months.
Judge Richard Posner, an appointee of Republican President Ronald Reagan, wrote the opinion for the panel. During oral arguments, it was Posner who fired the toughest questions at the bans’ defenders, often expressing exasperation at their answers.
The other two judges on the panel were 2009 Barack Obama appointee David Hamilton and 1999 Bill Clinton appointee Ann Claire Williams.
The ruling echoed Posner’s comments during oral arguments that “hate” underpinned the bans. “Homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world,” the ruling says.
The opinion repeatedly mentions the issue of tradition, noting that some, such as shaking hands, may “seem silly” but “are at least harmless.” That’s not the case with gay-marriage bans, the court said.
“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,” the opinion says.
A constitutional amendment approved in 2006 by voters banned gay marriage in Wisconsin, while state law prohibited it in Indiana.
The next appeals court to take up the question will be the San Francisco-based 9th Circuit, which will hear arguments Monday on gay marriage bans in Idaho, Nevada and Hawaii.
One outstanding question is whether the nation’s highest court will hear arguments on gay marriage.
On Thursday, Massachusetts Attorney General Martha Coakley led a filing in the Supreme Court on behalf her and 14 other states urging it to take up several pending cases on state same-sex marriage bans.
Supreme Court justices typically take up issues only when lower courts disagree. But in this case, even victors in the lower courts may want the high court to address the question — to settle the issue once and for all nationwide.
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