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  WINDY CITY TIMES

7th Circuit rules equal marriage bans unconstitutional

by Matt Simonette
2014-09-04

This article shared 5040 times since Thu Sep 4, 2014
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In a swift three-to-zero decision that was issued Sept. 4 in Chicago, the Seventh Circuit Court of Appeals said marriage-equality bans in Wisconsin and Indiana were unconstitutional. The decision came just nine days after judges heard oral arguments in the cases.

The 40-page ruling confirmed many of the concerns that the three-judge panel expressed about how children with LGBT parents might be impacted by discriminatory laws: "Formally these cases are about discrimination against the small homosexual minority in the United States. But at a deeper level, as we shall see, they are about the welfare of American children," wrote the decisions author, Judge Richard Posner, who went on to dismiss the argument, primarily made by the State of Indiana, that marriage laws incentivized "intended" births that could be raised in stable households with a mother and a father.

"Overlooked by this argument is that many of those abandoned children are adopted by homosexual couples, and those children would be better off both emotionally and economically if their adoptive parents were married," Posner wrote, adding that the argument was "so full of holes that it cannot be taken seriously."

Posner was appointed by Ronald Reagan. Joining him on the panel were Judge Ann Claire Williams, appointed by Bill Clinton, and Judge David F. Hamilton, appointed by Barack Obama.

The State of Wisconsin, among its arguments, said that its marriage ban stemmed from socio-cultural tradition, another argument the court, in its decision, did not buy: "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, as in Loving [v. Virginia]."

Wisconsin also argued at various points that the state had to apply marriage laws cautiously since the long-term effects and consequences of same-sex marriage were not yet known; that marriage matters are best left to the state legislature and voting referenda; and that, same-sex marriage was analogous to no-fault divorce in that it weakened the stability of the marriage institution. The decision pointed out the irony of the final contention: "Of course Wisconsin has no-fault divorce, and it's surprising that the state's assistant attorney general, who argued the state's appeal, would trash his own state's law."

Marriage equality advocates immediately heralded the Court's ruling.

"The court has affirmed the love and commitment our plaintiffs and thousands of same-sex couples in Indiana and Wisconsin have for each other. The unanimous decision also reinforces the importance of marriage for the children of same-sex couples, who shouldn't have to grow up thinking their families are inferior to other families," said Paul Castillo of Lambda Legal in a statement.

"Today we join same sex couples, their families and our allies across the country in celebrating this victory," said Larry Dupuis, legal director of the ACLU of Wisconsin"Every loving and committed couple in the U.S. should have the freedom to marry, protect their loved ones, and have their commitment honored by our legal system. We celebrate and tomorrow we continue the fight to make marriage equality the law of the land, not just in certain states."

Ken Falk, ACLU of Indiana legal director, added, "We are ecstatic that the court recognized what we have always maintained: That there is absolutely no justification for treating same-sex couples any differently than loving couples of opposite genders."

From press releases:

From Lambda Legal

(Chicago, IL, September 4, 2014) — In a unanimous 3-0 decision today, the U.S. Seventh Circuit Court of Appeals struck down discriminatory marriage bans for same-sex couples in Indiana and Wisconsin. The decision comes less than two weeks after attorneys from Lambda Legal argued on behalf of five Indiana plaintiff couples in the case Baskin v. Bogan and attorneys from The American Civil Liberties Union argued on behalf of thirteen plaintiff couples from Indiana and Wisconsin.

The decision, written by Justice Posner, contained strong language highlighting the importance of marriage for the children of same-sex couples:

"Because homosexuality is not a voluntary condition and homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world, the disparagement of their sexual orientation, implicit in the denial of marriage rights to same-sex couples, is a source of continuing pain to the homosexual community."

"The court has affirmed the love and commitment our plaintiffs and thousands of same-sex couples in Indiana and Wisconsin have for each other. The unanimous decision also reinforces the importance of marriage for the children of same-sex couples, who shouldn't have to grow up thinking their families are inferior to other families," said Paul Castillo, Staff Attorney for Lambda Legal. "Today's ruling adds to the incredible legal momentum for marriage we are seeing in courts across the country; it is a joyous day for freedom and justice in the Midwest."

Baskin v. Bogan, was filed by Lambda Legal on March 10, 2014 in the United States District Court for the Southern District of Indiana. Shortly thereafter, Lambda Legal filed a motion seeking immediate relief for Niki Quasney, Amy Sandler and their two children ages 3 and 1. Five years ago, Niki was diagnosed with stage four ovarian cancer, enduring multiple surgeries and years of chemotherapy. After nearly 14 years together, the couple married in Massachusetts last year. In two decisions issued in April and May, the court ordered the State of Indiana to recognize their out-of-state marriage. On June 25th, U.S. District Court Judge Richard L. Young ruled that Indiana's discriminatory ban on marriage for same-sex couples is unconstitutional. Two days later, the Seventh Circuit Court of Appeals granted Indiana Attorney General Greg Zoeller's emergency motion to stay the freedom to marry for all Hoosiers achieved through Lambda Legal's victories in Baskin v. Bogan, and also consolidated the case with two other marriage cases in Indiana, Lee v. Abbott and Fujii v Governor. After Attorney General Greg Zoeller attempted to block those victories, on July 1st, the Seventh Circuit Court of Appeals issued an order compelling the State of Indiana to continue to recognize the marriage of Lambda Legal plaintiffs Amy Sandler and Niki Quasney while the case proceeds.

Fujii v. Governor was filed on March 14, 2014 by the American Civil Liberties Union of Indiana, the national ACLU, and the Lemieux Law Office of Indianapolis filed, on behalf of six couples, a widow, and two children of same-sex parents. One of the plaintiffs, Midori Fujii, is a widow whose wife, Kris Brittain, died in 2011 after a two-year struggle with ovarian cancer. After Brittain's death, under Indiana law Midori was considered a legal stranger and could not make decisions about Brittain's funeral. Because their California marriage is not recognized in Indiana, Fujii was also required to pay more than $300,000 in state inheritance tax on all of the property that her wife left to her, including their shared home. If Fujii had been in an opposite-sex marriage she would have paid no inheritance tax on the property.

Wolf v. Walker, was filed in Wisconsin on February 3, 2014 by the American Civil Liberties Union, challenging Wisconsin's discriminatory ban on same-sex narruage on behalf of eight couples seeking the freedom to marry or to have their out-of-state marriages recognized. Two of the plaintiffs, Kami Young and Karina Willes of West Milwaukee, were legally married last year in Minnesota and have a newborn daughter. Only Young, however, as the biological mother, is recognized as a legal parent on the birth certificate.

Read more about the families in Lambda Legal's case here: www.lambdalegal.org/take-action/love-unites-us/indiana .

Read more about the families in the ACLU's cases here:

www.aclu.org/lgbt-rights/midori-fujii-et-al-v-indiana-governor-et-al .

www.aclu.org/lgbt-rights/wolf-and-schumacher-v-walker .

Paul D. Castillo, Staff Attorney, and Camilla Taylor, Marriage Project Director, are handling the case Baskin v. Bogan for Lambda Legal. They are joined by Barbara Baird of the Law Office of Barbara J. Baird in Indianapolis, Indiana, as well as Jordan Heinz, Brent Ray, Melanie MacKay, Dmitriy Tishyevich and Scott Lerner of Kirkland & Ellis LLP.

Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work.

From the ACLU

CHICAGO — The U.S. Court of Appeals for the Seventh Circuit today affirmed district court rulings from Indiana and Wisconsin striking down the states' marriage bans. The decision will go into effect in 21 days, unless the defendants seek a stay of the ruling.

Before the court were three cases from Indiana, Baskin v. Bogan, Fujii v. Governor, and Lee v. Abbott and one case from Wisconsin, Wolf v. Walker.

Writing for the three judge panel, Judge Posner explained, "[M]ore than unsupported conjecture that same-sex marriage will harm heterosexual marriage or children or any other valid and important interest of a state is necessary to justify discrimination on the basis of sexual orientation. As we have been at pains to explain, the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible."

"Today we join same-sex couples, their families and our allies across the country in celebrating this victory," said John Knight, senior staff attorney at the ACLU Lesbian Gay Bisexual and Transgender Project. "Every loving and committed couple in the U.S. should have the freedom to marry, protect their loved ones, and have their commitment honored by our legal system. We celebrate and tomorrow we continue the fight to make marriage equality the law of the land, not just in certain states."

James Esseks argued for the American Civil Liberties Union in Walker v. Wolf. The Wolf plaintiffs were also represented by John Knight of the ACLU LGBT Project, Larry Dupuis of the ACLU of Wisconsin and Hans J. Germann, Gretchen E. Helfrich and Frank Dickerson from the law firm of Mayer Brown. Kenneth Falk, Legal Director of the American Civil Liberties Union of Indiana, and Camilla Taylor, Marriage Project Coordinator at Lambda Legal, argued for the plaintiffs in the Indiana cases.

More information on these cases can be found at:

www.aclu.org/lgbt-rights/midori-fujii-et-al-v-indiana-governor-et-al .

www.aclu.org/lgbt-rights/wolf-and-schumacher-v-walker .

This press release is available at:

www.aclu.org/lgbt-rights/seventh-circuit-court-appeals-upholds-indiana-wisconsin-marriage-same-sex-couples .

From U.S. Senator Tammy Baldwin:

Washington D.C. — U.S. Senator Tammy Baldwin released the following statement today on the unanimous decision by the 7th Circuit Court of Appeals to uphold a previous Federal Court ruling for marriage equality in Wisconsin.

"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. 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."

An online version of this release can be found at the link: www.baldwin.senate.gov/press-releases/us-senator-tammy-baldwin-statement-on-7th-circuit-court-ruling-for-marriage-equality-in-wisconsin .

From HRC

WASHINGTON — Today the Seventh Circuit Court of Appeals ruled in cases from two states — Indiana and Wisconsin — that state bans on marriage for same-sex couples are unconstitutional. Baskin v. Bogan of Indiana — which was consolidated with Lee v. Pence and Midori Fujii v. State of Indiana — and Wisconsin's Walker v. Wolf were argued before a three-judge panel of the Seventh Circuit late last month. In the unanimous ruling today, Judge Richard Posner — a Ronald Reagan appointee — wrote, "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."

"Today yet another federal appeals court issued a ruling affirming that no state should be able to tell two people in love they can't legally marry, just because they are gay or lesbian," said Human Rights Campaign ( HRC ) Legal Director Sarah Warbelow. "LGBT families in these two states are just as deserving of the rights and protections that come with civil marriage as any other family across the country. The Supreme Court of the United States today has even more evidence that marriage equality should be the law of the land in America."

Aside from the cases decided today by the Seventh Circuit, cases from nine other states are currently pending before four federal appeals courts. The Tenth and Fourth Circuits both recently upheld rulings striking down state bans on marriage equality — Kitchen v. Herbert of Utah and Bishop v. Smith of Oklahoma in the Tenth Circuit, and Bostic v. Shaefer of Virginia in the Fourth Circuit. In total, 33 states either have marriage equality or have seen state marriage bans struck down as unconstitutional in federal or state court. Since the Supreme Court's historic marriage rulings last year, there have been 21 federal court decisions that bans on marriage equality are unconstitutional, with only one ruling in federal court upholding a ban. These rulings have come from judges appointed by both Democratic and Republican presidents.

The Supreme Court is under no obligation as to which case or cases — if any — it choses to hear on appeal. However, Justice Ruth Bader Ginsburg recently told reporters the Court will not "duck" a marriage case. "I think the court will not do what they did in the old days when they continually ducked the issue of miscegenation," Ginsburg said. "If a case is properly before the court, they will take it."

Gallup puts support for marriage equality at 55 percent — an astonishing 15 points increase from just 5 years ago — with other polls showing support at even higher margins. And support for same-sex marriage rights continues to grow in virtually every demographic group. According to ABC News / Washington Post, 77 percent of adults under age 30 favor marriage equality. 40 percent of Republicans — an all-time high and jump of 16 points in under two years — now support marriage for gay and lesbian couples, while the number of Catholics supporting marriage has grown to 62 percent,according to the New York Times. These numbers continue to grow, with no indication that support will slow down.

Same-sex couples can legally marry in nineteen states and the District of Columbia, while 31 states have a law or constitutional amendment restricting marriage to the union of one man and one woman. For more information on this and other marriage equality cases across the country, visit www.americansformarriageequality.org .

THE CASES

Indiana — On June 25th, 2014, U.S. District Court Judge Richard L. Young ruled that Indiana's ban on marriage equality is unconstitutional. The ruling covered three separate cases: Baskin vs. Bogan, Fujii v. State of Indiana, and Lee v. Pence. Judge Young did not stay the ruling, and couples immediately began marrying. Previously the court granted emergency relief for one of the plaintiff couples in the Baskin case, ordering the state to recognize their marriage as one of the women is battling terminal cancer. Indiana Attorney General Greg Zoeller appealed Judge Young's ruling, as well as the court order compelling the state to recognize the plaintiff couple's marriage, and requested a stay of the Seventh Circuit Court of Appeals. On June 27th, 2014, the Seventh Circuit granted Attorney General Zoeller's stay request, and also consolidated the three marriage cases for the appeal. Three days later, the Seventh Circuit issued an order forcing the state to continue recognizing the marriage of the individual plaintiff couple battling illness. The plaintiffs in Baskin v. Bogan are represented by attorneys from Lambda Legal and the law firm of Kirkland and Ellis LLP. The Fujii plaintiffs are represented by the ACLU and LeMieux Law Office. And the plaintiffs' attorneys in Lee v. Pence are with Austin & Jones, P.C.; Fillenwarth Dennerline Groth & Towe, LLP; Sniderman Nguyen, LLP; and Sweeney Law Group, LLC.

Wisconsin — On June 6, 2014, U.S. District Judge Barbara Crabb ruled against Wisconsin's constitutional amendment banning marriage equality. In Wolf v. Walker, the American Civil Liberties Union, ACLU of Wisconsin and the law firm of Mayer Brown LLP sued the state on behalf of four couples seeking to marry, arguing that the Wisconsin's ban on marriage equality violates the couples' due process and equal protection rights under the 14th Amendment to the U.S. Constitution. Judge Crabb did not stay her ruling, but also left unclear whether the state should stop enforcing the ban. Couples began marrying in the state and Wisconsin officials requested a stay from the Seventh Circuit Court of Appeals, but were denied, with the appeals court saying Judge Crabb had still not issued final judgment. Ultimately, Judge Crabb stayed her ruling, citing the Supreme Court of the United States' decision to halt marriages in Utah following a similar federal court ruling striking down that state's marriage equality ban.

The Human Rights Campaign is America's largest civil rights organization working to achieve lesbian, gay, bisexual and transgender equality. By inspiring and engaging all Americans, HRC strives to end discrimination against LGBT citizens and realize a nation that achieves fundamental fairness and equality for all.


This article shared 5040 times since Thu Sep 4, 2014
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