Judith Davidoff
Plantiffs Judi Trampf (left) and Katy Heyning (right) participate in an August 24 rally outside the Chicago courthouse where the Seventh Circuit Court of Appeals heard oral arguments on lawsuits seeking to overturn Wisconsin's and Indiana's same-sex marri
The Seventh Circuit Court of Appeals struck down bans Thursday on same-sex marriage in Wisconsin and Indiana, but marriages are still on hold at the Dane County courthouse.
Dane County Clerk Scott McDonell says he has been advised by his corporation counsel that he must wait until the law officially goes into effect in 21 days. At that point, says McDonell, "If I think I can issue a marriage license I will."
But Dana Brueck, spokeswoman for Attorney General J. B. Van Hollen, says the state will appeal to the U.S. Supreme Court "in a timely manner."
"The attorney general has always believed that this case will ultimately be decided by the United States Supreme Court," Brueck said in an email. "The stay remains in effect until all appeals have been concluded."
Two petitions from other federal jurisdictions have already been submitted to the U.S. Supreme Court seeking review of same-sex marriage ban rulings.
The federal appeals court decision upholds the June 6 ruling by U.S. District Judge Barbara Crabb that found Wisconsin's ban on same-sex marriage unconstitutional. The court, which covers Wisconsin, Indiana and Illinois, combined the case with multiple challenges to Indiana's same-sex marriage ban.
During oral arguments Aug. 26 before the appeals court, a three-judge panel gave strong signals it found little merit in the rationale presented by both states for their same-sex marriage bans. The court's ruling, authored by Judge Richard Posner, leaves little doubt of that now.
"The grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible," Posner wrote. He also said that the states gave the court "no reason to think they have a 'reasonable basis' for forbidding same-sex marriage."
The "most arbitrary feature" of Wisconsin's treatment of same-sex couples, Posner added, is its "refusal" to allow couples in domestic partnerships to adopt children jointly, as married heterosexual couples are allowed to do. "The refusal harms the children, and harms the parent who is not the adoptive parent by depriving him or her of the legal status of a parent. The state offers no justification."
Posner argued more than once in his ruling that homosexuality, like race or gender, is something that cannot be changed and is therefore subject to constitutional protections against discrimination.
"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."
Posner also took a jab at the state's domestic partner law, which was designed to give limited rights to same-sex couples.
"So look what the state has done: it has thrown a crumb to same-sex couples, denying them not only many of the rights and many of the benefits of marriage but also of course the name. Imagine if in the 1960s the states that forbade interracial marriage had said to interracial couples: 'You can have domestic partnerships that create the identical rights and obligations of marriage, but you can call them only "civil unions" or "domestic partnerships." The term "marriage" is reserved for same-race unions.'"
Withholding the term "marriage," Posner continued, "would be considered deeply offensive, and, having no justification other than bigotry, would be invalidated as a denial of equal protection."
Julaine Appling of Wisconsin Family Action, which led the campaign for Wisconsin's marriage ban, panned the ruling. "We are on uncharted territory here," she says. "Judges like Posner are attempting to create something out of nothing, quite frankly. We vociferously disagree with his understanding and opinion on this."
Appling has consistently argued that it is not for the courts to decide whether same-sex marriage should be legal in Wisconsin, since lawmakers passed the measure in consecutive sessions and voters approved the prohibition in a statewide referendum in 2006. But Posner addressed that argument head-on. "Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law."
Katy Heyning and Judi Trampf of Madison, who are among eight plaintiffs in the ACLU-Wisconsin case, say they are "thrilled beyond belief" with the ruling.
"Today Wisconsin takes a step forward for marriage equality," says Heyning. "We are so very happy."
Today happens to be Trampf's birthday.
Read the complete decision.
