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Supporters and plaintiffs of gay marriage greet each other after attending a hearing before the 7th U.S. Circuit Court of Appeals on the challenges to Indiana and Wisconsin's gay marriage ban Tuesday, Aug. 26, in Chicago.

Indiana gay marriage ban shot down

3 federal judges unanimous; Zoeller to request stay

– The 7th Circuit Court of Appeals on Thursday issued a lightning-fast ruling declaring Indiana's and Wisconsin's gay marriage ban implausible and unconstitutional. It came nine days after the states' cases were argued before the three-judge panel.

“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,” the ruling said.

Ken Falk, attorney for the ACLU of Indiana, smiled widely at a news conference and said the ruling came “fairly quick.”

He said the original stay in the case is still in effect, which means no same-sex marriages can currently occur in Indiana.

“This is a very good day, continuing a streak of very good days,” said Falk, who appreciated the court pointing out how silly the arguments against gay marriage are.

The unanimous ruling, written by Judge Richard Posner, said the ban violates the federal equal protection clause by denying homosexuals a right that is granted to heterosexuals – the right to marry an unmarried adult of their choice

“The discrimination against same-sex couples is irrational, and therefore unconstitutional,” the decision said.

Posner was sometimes almost tongue-in-cheek while refuting the arguments for the ban.

“Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”

Attorney General Greg Zoeller said the state will seek a stay of the ruling.

“It seems clear that a final resolution of the constitutional issues involving states' authority over their marriage licenses will need a decision from our nation's highest court,” Zoeller said. “Since the Supreme Court has already issued stay orders in two Circuit decisions, it seems appropriate that today's decision also be stayed. Hopefully, for the interests of everyone on both sides of these cases, the Supreme Court will make a ruling sooner rather than later.”

Senate President Pro Tem David Long, R-Fort Wayne, said he thinks the issue should be decided state-by-state but he was not surprised by the 7th Circuit ruling given the trend of similar rulings around the country.

“I have said all along that the U.S. Supreme Court will ultimately have to step in on this issue, and today's ruling reaffirms that belief. It is important for the Supreme Court to take up this issue as quickly as possible in order to clear up the chaos and uncertainty created by the various federal court rulings,” he said.

Thad Gerardot, an openly gay Democrat running for House District 81 in Fort Wayne, welcomed the ruling.

“I am overjoyed by today's unanimous decision from the U.S. 7th Circuit Court of Appeals to strike down bans on marriage equality in Indiana and Wisconsin,” he said. “Hopefully today's decision will put this matter to rest so that our leaders can start focusing on the problems that Indiana's working-class families are actually concerned about: job growth, strengthening our schools and improving our neighborhoods.”

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.

That decision also ordered immediate recognition of all out-of-state same-sex marriages in Indiana.

The Indiana law withstood a state 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.

Wisconsin Attorney General J.B Van Hollen said he would appeal the ruling to the U.S. Supreme Court.

Same-sex marriage is legal in 19 states and the District of Columbia. Bans that have been overturned in some other states continue to make their way through the courts. Since last year, the vast majority of federal rulings have declared same-sex marriage bans unconstitutional.

nkelly@jg.net

The Associated Press contributed to this story.

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