Never before has the legal case for nationwide marriage equality seemed stronger than at the recent Federal Court of Appeal’s argument in the Indiana and Wisconsin marriage cases. For nearly two hours, the Seventh Circuit panel of three judges, appointed by Presidents Reagan, Clinton, and Obama, tore gaping holes in every argument the states’ attorneys defending Indiana and Wisconsin’s marriage bans offered.
The states’ attorneys sometimes appeared at a loss for words or flustered, and the Wisconsin attorney even tried, unsuccessfully, to evade answering one of the Court’s questions by suggesting his time was up when it wasn’t. One judge referred to various arguments the states made as “feeble,” “absurd,” “ridiculous,” and “pathetic.” The states’ attorneys came up with nothing credible to defend the bans. When the Court asked Wisconsin’s attorney how ending the exclusion of LGBT couples from marriage would harm anyone else, he responded: “…[w]e don’t know.”
Perhaps the most important aspect of the argument was the respect all three judges evidenced for the dignity of LGBT Americans and their children. For decades, opponents of equality have slandered LGBT Americans by falsely accusing them of being harmful to children—be it Anita Bryant’s 1970s “Save the Children” campaigns, or the 2008 Proposition 8 campaign. Last year, the United States Supreme Court, in its decision striking down DOMA, held the opposite: anti-LGBT laws, in fact, harm children of LGBT parents.
The Supreme Court stated that DOMA “humiliates tens of thousands of children now being raised by same-sex couples…mak[ing] it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives…” The Seventh Circuit went further, with one judge referring to many of the harms that the states’ marriage bans have inflicted on children of LGBT parents as “harrowing” and noting America’s history of “savage” discrimination against lesbian and gay people based on “hate.”
Indiana and Michigan’s attorneys argued that their states could continue to bar same-sex couples from marriage because they claimed the purpose of marriage was to encourage unmarried heterosexuals who engage in sexual activity in which the woman became pregnant to stay together. The Court asked why the states did not criminalize heterosexual “fornication” outside of marriage instead, and it noted that the states’ current laws actually penalize LGBT couples who carefully plan their families.
One judge presented data showing that, in fact, from 1990-2009, years in which the same-sex marriage bans were in place, the proportion of out-of-marriage births increased 68% in Indiana and 53% in Wisconsin, with the out-of marriage birth rate for some demographic profiles over 90%. Noting that the states’ purported policy of banning same-sex marriage to prevent out-of-marriage births was “pretty unsuccessful,” the judge named the states’ argument for what it was, an ”artificial rationale” to exclude same-sex couples from marriage.
On Monday, September 8, the Ninth Circuit in San Francisco hears oral arguments in the Idaho, Nevada, and Hawaii cases. Stay tuned.
John Lewis and Stuart Gaffney, together for nearly three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008.