Seventh Circuit Judge Richard Posner
Appeals Court Strikes Marriage Bans in Ind., Wis.

By Sunnivie Brydum

Originally published on Advocate.com September 04 2014 4:03 PM ET

A three-judge panel of the Seventh Circuit Court of Appeals today unanimously upheld a U.S. district court ruling striking down bans on same-sex marriage in Indiana and Wisconsin. 

In the decision, Judge Richard Posner adopted a similarly harsh tone as that he used when questioning state attorneys defending the laws in court last week. 

"The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny," writes Posner.

Posner, a Reagan appointee, soundly rejected the defense's argument that the state's laws were related to a legitimate interest in preserving and supporting procreative couples. Pointing to an Indiana law that prohibits marriages between first cousins until the age of 65, Posner highlights the state's flawed logic that only opposite-sex couples, who can create children accidentally, deserve the protection of marriage. 

"In other words," Posner writes, "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 combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, 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," Posner summarizes. "Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure."

If Indiana and Wisconsin officials want to appeal the ruling, they now have the option of requesting a rehearing before the full Seventh Circuit, known as an en banc hearing, or appealing to the U.S. Supreme Court. 

However, Wisconsin's two top-ranking LGBT elected officials called on the state's Republican governor and attorney general to drop their appeal, and let the lower court rulings stand, bringing marriage equality to Wisconsin. 

“Today’s decision puts Wisconsin back on track to ensuring full equality for every American,” said Rep. Mark Pocan in a statement. “It is clear discriminatory laws that treat LGBT couples as second-class citizens will not stand in a court of law. I urge Governor Scott Walker and Attorney General J. B. Van Hollen to respect the Court’s ruling and the spirit of the U.S. Constitution. In ruling after ruling, it has become unmistakable that the promise of America is everyone should be treated equally and with dignity."

Wisconsin Sen. Tammy Baldwin, the first openly LGBT person elected to serve in the U.S. Senate, echoed Pocan's sentiment. 

"Today’s decision is yet another affirmation that discrimination doesn’t just violate our Wisconsin values — it violates our Constitution and marriage equality will be the law of the land in our state," said Baldwin in a press release. "It is simply wrong for Governor Walker and Attorney General Van Hollen to continue to defend discrimination and with the unanimous rejection of their position by another federal court, it is long past time for them to stop standing in the way of freedom, fairness and equality for all Wisconsinites. Love is love, family is family, and discriminating against anyone’s love, against anyone’s family, is not only wrong, it is unconstitutional. It is now time for us to keep our promise to pass on to the next generation a Wisconsin that is more equal, not less equal."

The ruling is the fourth from a federal appeals court to determine that bans on same-sex marriage violate the Due Process and Equal Protection clauses of the U.S. Constitution. In June the 10th Circuit affirmed a lower court ruling striking down Utah's marriage ban, and in July the same panel of judges followed suit, affirming a lower ruling finding Oklahoma's ban unconstitutional. In July a three-judge panel of the Fourth Circuit Court of Appeals struck down a similar law banning same-sex marriage in Virginia. Parties in all three of those cases are seeking review by the U.S. Supreme Court. 

Thursday's decision is the 39th ruling from a state or federal court in favor of marriage equality since the Supreme Court's landmark pro-equality decisions in June 2013. Since that time, just two judges have upheld state bans on same-sex marriage — a state judge in Tennessee and a federal judge in Louisiana