CHICAGO – The three-judge panel hearing arguments Tuesday about gay marriage bans in Indiana and Wisconsin peppered attorneys defending the laws with questions about what harm there is in allowing same-sex couples to marry.
And the attorneys had trouble answering, pointing to possible unintended consequences in the future.
The questioning by the 7th Circuit Court of Appeals judges was hard-hitting – using terms such as “ridiculous,” “absurd,” and saying the state’s attorneys were talking in circles.
“Don’t you have to have some empirical or common-sense reason to ban marriage?” asked Judge Richard Posner, who most actively questioned the lawyers.
“What is the benefit of the law? Who is being helped by this law if anyone? What is the harm of allowing these people to marry? Does it hurt heterosexual marriage?”
More than 150 people crowded into the courthouse – many of them plaintiffs in three Indiana lawsuits that were consolidated on the federal level.
Indiana Solicitor General Thomas Fisher defended the law by saying it’s in the state interest to encourage marriage among heterosexuals so children are raised in durable, long-term relationships.
“The argument in the 7th Circuit Court of Appeals is the one time in the case where the lawyers can speak directly to the judges; and vigorous questioning by judges is how the appellate process is supposed to work,” said Attorney General Greg Zoeller.
“Since the larger legal question could end up before the United States Supreme Court, this 7th Circuit hearing is one important step in the process. As the state government’s lawyers, my office has a duty in this appeal to defend Indiana’s law. While this case stirs strong emotions on all sides, we urge everyone to show civility toward each other and respect for the court.”
In late June, U.S. District Judge Richard Young tossed out Indiana’s ban on gay marriage, saying “it is clear that the fundamental right to marry shall not be deprived to some individuals based solely on the person they choose to love.”
Hundreds of gay couples around the state ran to courthouses and got married in the days following before the 7th Circuit issued a stay of the ruling.
The case involved three different lawsuits on behalf of a number of couples seeking the freedom to marry in Indiana or recognition of a marriage from another state. The decision also ordered immediate recognition of all out-of-state same-sex marriages in Indiana.
The Indiana law withstood a challenge in 2005 when the Indiana Court of Appeals upheld the statute defining marriage as between one man and one woman. But this time, plaintiffs took their case to the federal system, where other state statutes have been struck down.
Specifically, Young ruled the law violates the U.S. Constitution's equal protection clause and due process clause.
Indiana lawmakers this year fought about whether to put the state's traditional definition of marriage into the Indiana Constitution, which would have presumably protected it from a state court ruling. But they had no control over the federal courts.
For more on this story, see Wednesday's print edition of The Journal Gazette or visit www.journalgazette.net after 3 a.m. Wednesday.