Thursday, September 04, 2014

7th Circuit Affirms Indiana And Wisconsin Trial Court Decisions Striking Down Same-Sex Marriage Bans

The Seventh Circuit Court of Appeals wasted no time in rapidly handing down its opinion affirming separate district court rulings in Indiana and Wisconsin striking down the respective states' laws barring same-sex couples from legally marrying under state law. Judge Richard Posner, a Reagan appointee to the court, wrote the opinion for the three-judge panel in Baskin v. Bogan, which was joined by Judge Ann Williams and Judge David Hamilton. The Court's opinion, in short, relies on the equal protection arguments a majority of the Supreme Court relied upon last year in U.S. v. Windsor in striking down a key provision of the federal Defense of Marriage Act. Today's decision affirms the lower court decisions in Indiana and Wisconsin invalidating their Defense of Marriage laws and enjoining the states from preventing officials from issuing marriage licenses to same-sex couples. The Court's stay pending appeal, however, remains in place. The opponents of same-sex marriage will likely appeal today's decision to the U.S. Supreme Court, if not at least an en banc review of the three-judge panel decision.

UPDATE: Gov. Mike Pence's office released the following statement in reaction to today's opinion:
“I’m grateful for the efforts of the Attorney General to defend Indiana's marriage laws before the 7th Circuit Court of Appeals.  I have instructed my General Counsel to carefully review this decision. While I continue to hope that the right of the state of Indiana to enact laws concerning the institution of marriage will be upheld when this matter reaches the Supreme Court of the United States, Hoosiers may be assured, as my administration has done throughout this case, we will continue to uphold the rule of law in all executive branch operations as this matter moves to the highest court in the land."


Anonymous said...

But some Dist Court Judge/Magistrate in Louisiana ruled in favor of Louisiana's ban yesterday.

Gary R. Welsh said...

Scalia read the tea leaves correctly in his dissenting opinion in U.S. v. Windsor when he said it was only a matter of time before the other shoe dropped.

Pete Boggs said...

Marriage & civil unions are unique & different ideas. No common language- no law!

Anonymous said...

They found gay marriage in the Constitution? Funny, I never saw it there. I might give the Constitution a shake and see what else falls out of it.

These dim-witted legal "minds" would do well to remember that a constitution is not an open door to allow every novel social invention currently in vogue, but a strictly bounded permission from the citizens to govern.

In creating and empowering a government via a constitution, we have only agreed to certain, well delineated, limits on how much we would be governed.

When the government finds a constitution to be amorphous, it breaches the contract each citizen made with the government, and to government becomes a rule of force, rather than consent.

Anonymous said...

The ruling in Louisiana sits more comfortably with the idea that a constitution is a limited document and governmental charter than does the rulings which torture the Constitution to have it become, in absence of a relevant amendment, whatever anyone would like it to be.

The favorable rulings have simply been urban liberals writing opinions pleasing to other urban liberals. Ultimately, constitutional government by preference will fail in this issue, and the people will be told that if they want the Constitution to recognize gay marriage, so amend it, or choose to reside in a state that more harmoniously aligns with their tastes.

Gary R. Welsh said...

There is actually nothing in the U.S. Constitution about marriage period, probably because the founders believed the state's were best suited for writing laws respecting marriage. The full faith and credit clause, however, would on its face require a state that does not recognize same-sex marriage to recognize a same-sex marriage lawfully entered into in another state. Per U.S. v Windsor, the Supreme Court has effectively interpreted the due process clause of the Fifth Amendment to prohibit recognition of a couple's marriage based on their sexual orientation.

Anonymous said...

"The full faith and credit clause, however, would on its face require a state that does not recognize same-sex marriage to recognize a same-sex marriage lawfully entered into in another state."

That's a big stretch. I see no facial requirement of gay marriage in the clause.

"Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state."

That you own the load of timber in your semi as you travel across state lines seems to be covered, as does your ownership of the semi. That the State of New Jersey has recognized you as the Great Wizard of the Ages, due all rights, privileges and honors may be safely ignored by Delaware.

The Full Faith and Credit Clause really only prevents a state from frustrating commerce amongst all the states.

Gary R. Welsh said...

The Full Faith & Credit Clause has applied to marriages. For example, one state allows a 16-year old to consent to marriage, while another state requires a person to be at least 18 years of age to consent to marry. The latter state is required to recognize that marriage even though it would not have been legal if entered into in that state.

Anonymous said...

"The Full Faith & Credit Clause has applied to marriages."

Courts say a lot of things that are nowhere in the Constitution. Are you having a discussion about what the Constitution actually says or what someone get get away with arguing?

In the case of the junior marriage, the courts will use one of those byzantine interest-balancing tests to determine that it's best for states not to upset validly created marital bonds that will become valid in State B with a few calendar flips. One cannot allow children to become bastards or orphans merely because of relocation.

Junior marriage is of the same type and character recognized by State B; if a few years premature.

Any Oklahoman will quickly affirm that junior marriage is much less disruptive to the Oklahoman lifestyle and in no way analogous to gay marriage.