Attorneys for Indiana and Wisconsin faced tough, pointed questions from a panel of three federal appeals judges in this morning’s arguments over bans on gay marriage in those states.
Judge Richard Posner waited just about a minute before interrupting the solicitor general from Indiana, beginning a line of questioning about why children of same-sex couples should not be allowed to have legally married parents, as do children of heterosexual couples.
To press his point, Posner asked the attorney to remember when he was six, and consider what it is like for young children of same sex parents to have to realize they are different than their classmates.
“Wouldn’t the children want their parents to be married,” Posner asked, also noting the thousands of children in foster care in Indiana who need to be adopted. “What do you think is psychologically better for the child?”
Attorneys from both states were on the defense during much of the questioning.
The Indiana solicitor general defended the ban by linking marriage, as an institution, to procreation and the need for that to be regulated by the state.
“Men and women make babies and there has to be a social mechanism to deal with that,” Thomas M. Fisher said under heavy questioning.
Earlier, Fisher turned aside any suggestion that the state was discriminating against same-sex couples. “It’s all a reflection of biology,” he said. “It’s simply that men and women make babies.”
Timothy C. Samuelson, the assistant attorney general from Wisconsin, repeatedly used the word “tradition” to defend the ban in that state on gay marriage, leading exasperated judges to ask what he meant by that.
“Tradition is based on experience,” Samuelson said.
Judge David F. Hamilton pressed Samuelson to explain why “tradition” was a sufficient argument for why a ban in that state should not be overturned.
“I assume you’re familiar with how that’s been working out in practice over the past 25 or 30 years," Hamilton said, referring to the concept that marriage is meant to promote childbirth and to keep couples together.
After the 90 minutes of arguments concluded, supporters of gay marriage flooded into the Dirksen U.S. Courthouse lobby, some carrying flowers. The mood was upbeat.
“Hopeful,” was how Amy Sandler, an Indiana plaintiff, described the debate. “I felt it was moving in the direction of the rest of the country.”
Kyle Megrath, marriage coordinator for Hoosiers Unite for Marriage, said he was cheered by today's proceedings.
"It was encouraging ...to hear about how, when we talk about any state's interest in marriage, it is important that same sex couples be able to have the same protections for the children that they adopt and mutually agree on deciding to have,” he said. “So I think one of the best things about what I heard in there today is there is a state interest in same sex couples being able to get married."
Megrath said judges were hard on the attorney from the state of Indiana.
"I was surprised,” Megrath said. “I think that it was pretty clear the judges saw weakness.”
Camilla Taylor, Lambda Legal’s National Marriage Project Director and lawyer for the couples who are challenging the ban in Indiana, was also happy after the hearing.
“We are extremely hopeful and optimistic based on what we heard today," Taylor said. "It felt like it went extremely well. It felt like the court was not persuaded at all by the arguments put forward by the state and we’re hopeful we’ll get a speedy victory.
Taylor criticized Indiana's defense of the law as "this notion that marriage is necessary to protect children who are procreated accidentally by different sex couples. . . The court was very concerned about the fate of those children being reared by their same sex parents and how those children are harmed by being fenced out from all the security protections and dignity that go along with having married parents.”
But Mike Dean, attorney for Wisconsin Family Action, said the court was not interested in hearing the group's rationale that a child should grow up with both a mother and a father.
“This goes back to the fundamental issue. Do we deny biological reality in order to legally affirm felt autonomy? Does a law exist to make people feel better?” Dean said. “That is their choice, but to go and say that therefore society as a whole must agree that relationship is the same as a heterosexual marriage, that is a step that cannot be taken.”
Julaine Appling, president of Wisconsin Family Action, said it is in the state’s interest to make sure that "the next generation of taxpayers and work force and entrepreneurs and leaders have the best opportunities to grow up to become contributing citizens.
"If that is not a compelling state interest, I don’t know what is," she said. "What is in the best interest of children to attain is to be brought up in the married homes of their moms and dads, not deconstruction of the institution that affirms that.”
The 7th U.S. Circuit Court of Appeals in Chicago hears cases not only from Illinois but from Wisconsin and Indiana. Several federal lawsuits have been filed in both states on behalf of same-sex couples who say the refusal to recognize and allow same-sex marriages violates their constitutional rights.
Lower courts in Wisconsin and Indiana agreed the bans were unconstitutional, but each state challenged those decisions to the appellate court. No decision was expected today. The cases in both states were originally filed in winter and spring 2014.
There are 92 cases pending in 33 states in federal and state courts and potentially three headed to the Supreme Court. Last month a federal appellate court in Virginia also issued a pro-gay marriage ruling, though the Supreme Court has issued a stay pending appeals, putting license applications on hold.
Gay marriage became legal across Illinois in June, after the law was signed in November 2013.
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