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Associated Press
ACLU attorney Ken Faulk, center, talks to reporters Tuesday after participating in a hearing before the 7th U.S. Circuit Court of Appeals in Chicago.

7th Circuit grills states on gay marriage bans

– The three appellate judges who will decide the constitutionality of gay marriage bans in Indiana and Wisconsin used sharp questioning Tuesday to highlight inconsistencies in the arguments behind the laws.

And the attorneys defending the bans had trouble pinpointing any “harm” that would occur if same-sex couples were allowed to marry.

A ruling could come in weeks or months, but the case will ultimately be appealed to the U.S. Supreme Court regardless of the decision.

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.

Some people lined up for the limited spots as early as 3:30 a.m.

Indiana Solicitor General Thomas Fisher defended the law by saying it’s in the state’s interest to regulate and encourage marriage among heterosexuals so that unintended children are raised in durable, long-term relationships.

That’s when Posner pointed out that gay couples in Indiana can adopt children but aren’t allowed to bring the same marital benefits to that family as heterosexual couples.

Fisher said the state’s marriage laws are unrelated to adoption laws.

Then Posner said if marriage is about procreation, why are sterile citizens allowed to marry. And Indiana even allows first cousins to marry if they are older than 65, which is past child-bearing age.

Judge David F. Hamilton also said if the point behind the bans is to encourage procreation within marriage, it isn’t working. He quoted federal statistics showing the proportion of births to unmarried mothers has increased 68 percent in Indiana between 1990 and 2009.

He said the procreation argument is really just a “reverse-engineered theory to avoid logic and ignore a good deal of history.”

Ken Falk, who argued on behalf of the ACLU of Indiana and its plaintiffs, said the appellate judges recognized the basic fallacy on the notion of responsible procreation.

“Indiana allows people to marry who can’t procreate, and Indiana allows people to adopt who can’t marry, and that makes no sense,” he said.

Camilla Taylor, an attorney for Lambda Legal, a law firm that advocates for civil rights for gays and lesbians, said attorneys for Indiana and Wisconsin offered no examples of harm that could come from allowing gay couples to marry.

“Clearly, there is tremendous harm to same-sex couples and their children,” she said. “There is absolutely no harm to anyone else by allowing them to marry.”

Fisher declined to comment after the argument. Instead, Indiana Attorney General Greg Zoeller released a statement.

“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,” he said.

“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.”

The attorneys fighting for same-sex marriage were thrilled with the three-judge panel that was chosen about an hour before the argument. Hamilton and Ann Claire Williams were appointed by Democratic presidents, and Posner was appointed by Ronald Reagan, a Republican.

In late June, U.S. District Court 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 that the law violates the U.S. Constitution’s equal protection clause and due process clause.

Indiana lawmakers this year fought over 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.