WASHINGTON — As was clear from arguments heard only nine days ago, the 7th Circuit Court of Appeals on Thursday decided that Indiana and Wisconsin's bans on same-sex marriages are unconstitutional.
Judge Richard Posner wrote for the 3-0 panel of the appeals court in the cases that the bans violate the constitutional guarantee of equal protection of the laws.
Specifically, he wrote:
Our pair of cases is rich in detail but ultimately straightforward 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.
Posner, who was rough in his questioning of the lawyers for both states at oral arguments, concluded: "The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases."
In other words, the case is an easy one, by Posner's analysis, and the questions about whether sexual orientation claims should be given closer scrutiny by courts — or whether the marriage bans constitute sex discrimination and should be viewed more skeptically — need not be decided.
Because of the court's decision on equal protection grounds, Posner also noted that the court was not deciding whether the bans also are unconstitutional by abridging access to a "fundamental right" of marriage. At arguments, Posner and the other judges — Judges Ann Claire Williams and David Hamilton — questioned how the same-sex couples' arguments about the fundamental rights question could distinguish between bans on same-sex couples' marriages and other bans, including incest-related bans and polygamy bans.
Williams and Hamilton joined Posner's opinion, making the 7th Circuit the third federal appeals court to rule this summer that states' bans are unconstitutional.
Appeals court judges hearing cases out of Utah and Oklahoma in the 10th Circuit and Virginia out of the 4th Circuit also struck down state bans. Officials in all three of those cases have asked the Supreme Court to hear appeals of their state's case this upcoming term, which begins in October.
The 6th Circuit — which heard cases out of Kentucky, Michigan, Ohio, and Tennessee in early August — is yet to rule. The 9th Circuit is scheduled to hear cases out of Idaho and Nevada — as well as a case out of Hawaii, which already has statutorily enacted marriage equality — on Monday.
Notably, Posner quickly dismissed one of the main arguments that the Judge Jeffrey Sutton focused on in the 6th Circuit arguments, a 1972 case called Baker v. Nelson, that the Supreme Court had dismissed "for want of a substantial federal question." To the argument that the case is still a precedent that must be followed by lower courts, Posner wrote:
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, 517 U.S. 620, 634–36 (1996); Lawrence v. Texas, 539 U.S. 558, 577– 79 (2003), and United States v. Windsor are distinguishable from the present two cases but make clear that Baker is no longer authoritative.
As with the other appellate marriage rulings, it is expected that a stay would be issued pending any further appeal — either for an en banc rehearing by the entire 7th Circuit or should the states seek review from the Supreme Court.
In any event, the mandate, which formalizes the end of the appeal to the trial court, would not be issued, under the court's rules, until "7 days after the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, rehearing en banc, or motion for stay of mandate, whichever is later. The court may shorten or extend the time."
The rulings are stayed pending Supreme Court action, per an order of the 7th Circuit Court of Appeals filed on Monday, September 15.