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Judges chide state lawyers over gay marriage bans

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Federal appeals judges bristled on Tuesday at arguments defending gay marriage bans in Indiana and Wisconsin, with one Republican appointee comparing them to now-defunct laws that once outlawed weddings between blacks and whites.

As the legal skirmish in the United States over same-sex marriage shifted to the three-judge panel of the 7th U.S. Circuit Court of Appeals in Chicago, more than 200 people lined up hours before to ensure they got a seat at the much-anticipated hearing.

While judges often play devil's advocate during oral arguments, the panel's often-blistering questions for the defenders of the same-sex marriage bans could be a signal the laws may be in trouble — at least at this step in the legal process.

Richard Posner, who was appointed by President Ronald Reagan in 1981, hit the backers of the ban the hardest. He balked when Wisconsin Assistant Attorney General Timothy Samuelson repeatedly pointed to "tradition" as the underlying justification for barring gay marriage.

"It was tradition to not allow blacks and whites to marry — a tradition that got swept away," the 75-year-old judge said. Prohibition of same-sex marriage, Posner said, derives from "a tradition of hate ... and savage discrimination" of homosexuals.

Attorneys general in both states asked the appellate court to permanently restore the bans, which were ruled unconstitutional in June. Its ruling could affect hundreds of couples who married after lower courts tossed the bans and before those rulings were stayed pending the Chicago appeal.

Gay marriage is legal in 19 states as well as the District of Columbia, and advocates have won more than 20 court victories around the country since the U.S. Supreme Court ordered the federal government to recognize state-sanctioned gay marriages last year.

The Supreme Court has yet to take up a case, but Utah and Oklahoma's cases were appealed to the high court and Virginia's attorney general also asked the justices to weigh in. Appeals court rulings are pending for Kentucky, Michigan, Ohio and Tennessee, while appellate court hearings are scheduled next month for Hawaii, Oregon, Idaho, Nevada and is expected soon in Texas.

Posner, who has a reputation for making lawyers before him squirm, cut off Indiana Solicitor General Thomas Fisher just moments into his presentation and frequently chided him to answer his questions.

At one point, Posner ran through a list of psychological strains the children of unmarried same-sex couples suffered, including having to struggle to grasp why their schoolmates' parents were married and theirs weren't.

"What horrible stuff," Posner said. What benefit to society in barring gay marriage, he asked, outweighs that kind of harm to children?

"All this is a reflection of biology," Fisher answered. "Men and women make babies, same-sex couples do not... we have to have a mechanism to regulate that, and marriage is that mechanism."

Samuelson echoed that, telling the hearing that regulating marriage — including by encouraging men and women to marry — was part of a concerted Wisconsin policy to reduce numbers of children born out of wedlock.

"I assume you know how that has been working out in practice?" Judge David Hamilton responded, citing figures that births to single women from 1990 to 2009 rose 53 percent in Wisconsin and 68 percent in Indiana.

While the judges seemed to push defenders of the bans the hardest, they also pressed the side arguing for gay marriage to say just where they themselves would draw the line between who could and couldn't marry.

Would they argue in favor of polygamy on similar grounds, by pointing to the emotional toll on children in families with multiple mothers or fathers, asked Hamilton, a President Barack Obama appointee.

"If you have two people, it's going to look like a marriage," said attorney Kenneth Falk of the American Civil Liberties Union of Indiana. "If you have three or four, it doesn't. ... There's no slippery slope."

Among those following the arguments in court was plaintiff Ruth Morrison, a retired Indianapolis Fire Department battalion chief. She said that because Indiana won't recognize the woman she married in another state as her wife, she wouldn't be able to pass on pension and other benefits if she dies.

"Now Indiana tells us our promises are only good if our spouses are of the opposite sex," Morrison, wearing a fire department uniform, said during a rally ahead of the hearing Monday night.

A voter-approved constitutional amendment bans gay marriage in Wisconsin. State law prohibits it in Indiana. Neither state recognizes same-sex marriages performed elsewhere. The lawsuits that led to Tuesday's hearing in Chicago contend that the bans violate the U.S. Constitution's equal protection guarantee.

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  • where it ends
    It is a very slippery slope that ends in hades at "THE END"
  • Daniel
    So Daniel has been largely defeated by logic with respect to his polygamy argument, and by facts with respect to his uninformed Constitutional argument, so he goes to religion. You may be surprised Danny that I am a moderate conservative, heterosexual Christian. I am all those things as well as accepting of homeosexual relationships and the government's recognition of religion. I do, however agree with you that the government may not force your religion or you in your faith to recognize homosexual marriages. You will be required, however, to recognize the equality of those marriages and their burdens and benefits in your civil dealings with homosexual people. That is the price you pay for living in a society of laws and constituional protections. You, your personal interests and business interests may also suffer consequences from private/non-governmental parties for your views. That's the nature of capitalism and a free society if your views are outdated. So once again I say, good luck. Your views have lost on every front and will continue to lose. You remain entitled to them, but you must also accept the negative consequences.
  • 1 is a state law and 1 we are trying to get approved
    In Indiana we can marry our 1st cousin as long as both adults are 65 and older. But Gays still can't get married. To put some perspective on this: when the law about cousins marrying came into play Viagra and other drugs like it were not around. So the thought of two 1st cousins having sex was not an issue. Fast forward to the 21st century (remind me we are in the 21st and not 18th correct); there are drugs like Viagra and others that make it not only possible for those 65 and older to have sex; but possibly reproduce. So with our law those 65 and older who are 1st cousins can not only marry but they can have sex and reproduce. But, this doesn't offend anybody. This is apparently normal in today's society. Oh wait. It isn't normal in today's society. Gay marriage is more normal in today's society than 1st cousins marrying. It will happen. People will continue to protest and vote for it to happen and be legal for them to marry those who they want in which state they want.
  • definition
    Liberals do not understand that marriage is not about a law or a right ... it is a rite of religous faith. Liberals want "legal" recognition of their homosexual relationship ... which is OK by me ... but it will never be classified as a marriage because marriage is a relationship between a man and a woman. You can gain / obtain legal recognition / status ... but most people will not acknowledge that 2 people of the same sex are married. It's not really possible as long as marriage is defined as one man and one woman.
    • Daniel
      That second phrase, "...nor make or enforce any law which shall abridge the privileges or immunitites of citizens..." is the one. If you can't understand that you lack a fundamental understanding of the Constitution and I can't help you. You're blind with prejudice.
    • Really?
      Why do you conservatives always go to the marrying father/daughter, man/animal thing? And why should I keep my sexuality to myself? I see straights kissy facing in public all the time.
    • XIV
      I just read the XIV Amendment ... I read where no State shall deprive any person of life, liberty, or property ... nor make or enforce any law which shall abridge the privileges or immunitites of citizens ... I didn't see anything in it regarding the re-definition of marriage.
      • And Daniel...
        It's not 2 or 3 liberal judges. It's 30 judges throughout every corner of this land who have reached the exact same conclusion every single time this case has been raised in every jurisdiction. It has, quite literally, been a unanimous decision. They're relying, in large part, on the protections provided to every citizen of this country by the 14th Amendment to the U.S. Constitution. Find some facts before you reach conclusions. If you continue to fight this in a public forum it is you who will need the luck. We don't need it. We have logic, rationality, morality and public support on our side.
      • Where does it stop?
        I think the slippery slope question is valid. Will it become legal for father/daughter marriages? Brother/sister? Polygamy? Where does it end?
        • reason
          The logic of the argument for homosexual marriage would infer that 3 or more consenting/loving/committed adults of the same gender should be able to legally marry. If you are changing one aspect of the definition of marriage (gender) … than all aspects of the definition of marriage (number of participates, ages, biological relations) are open for re-defining. Good luck!
          • With all due respect...
            I think you missed the point. The argument is this: the FACT that it takes opposite genders to reproduce is merely the BASIS for marriage definition, not that reproduction is expected in order for a heterosexual couple's marriage to be recognized.
          • Nice to Know...
            That the State of Indiana considers my marriage to my wife (of the opposite sex) to be invalid, since we are unable to produce offspring.
            • No Slippery Slope??
              Is Mr. Falk evading Justice Hamilton's question when he claims that there is "no slippery slope"? The same it-will-look-like-a-marriage argument could NOT have been made in reference to same-sex marriage as recently as a generation ago. On the other hand, a variety of cultures throughout human history have already practiced polygamy. So don't people already have the capacity to recognize such relationships as marriages? How DOES the ACLU oppose the same-sex marriage ban, while at the same time refusing to acknowledge that another category of consenting/loving/committed adults could desire comparable rights, as well?
            • Poor Deflection
              I listened to some of the states' arguments and thought the "baby making" argument was flimsy. That said, as a lawyer I think Fisher would lose for sure if he brought out the real reason, which is that most people of a certain age were brought up in the Judeo-Christian tradition that marriage is between a man and a woman. The very mention of religion as a basis for anything is a dead bang loser these days. I'm a bit too old to care. I just don't see why people can't keep their sexuality to themselves.
            • To Daniel...
              I'm pretty sure the Constitution is just find. Your same argument was echoed by slave owners and segregationists, who also come down on the wrong side of history. You're also wrong about public opinion. The most recent Gallup poll puts public support for same-sex marriage at 55%. You're in the minority, so deal with it.
            • Not so fast
              Daniel - Wild stab in the dark here, but I'm guessing that a 75-year-old white, male, Reagan appointee is not exactly a "liberal" judge. And by the way, the "majority of Americans" are absolutely not in favor of discrimination, you just think that.
            • representative democracy
              Since marriage remains defined as 1 man + 1 woman … there is really nothing for people to worry about. The majority of Americans are rejecting the results of liberal / activist judges any way. When 2 or 3 judges can overturn the laws instituted by an elected representative government … our constitution is in peril of being trampled.
              • Struggling for a reason
                I'm sure these lawyers were having problems coming up with any non-religious reason to ban same-sex marriage. I've asked proponents of this ban the question many times and the only answers I have received were religious reasons. Quite often the reason had to do with marriage to a pet or marriage between a group even though those have nothing at all to do with this. I'm looking forward to less discrimination in our state soon!
              • Zoeller's positions embarrass Indiana
                They never let go of the "make babies" argument. It fails instantaneously because a considerable percentage of heterosexual marriages don't produce any children either. Although if someone wants to pass a law that any couple, heterosexual or homosexual, cannot be legally married (and therefore not utilize all legal, financial, and tax benefits that come with it) until they have produced a biological child, that would be fun to see as a spectator. "All this is a reflection of biology," Fisher answered. "Men and women make babies, same-sex couples do not... we have to have a mechanism to regulate that, and marriage is that mechanism." The civil contract called marriage does NOTHING to regulate babymaking, whether purposefully or accidental. These conservatives really need to understand that sex education and access to birth control do far more to regulate babymaking in this country. Moreover, last I checked, same-sex couples can make babies in a variety of ways, and none of them are by accident. Same-sex couples often foster and adopt the children produced by the many accidental pregnancies from mixed-sex couples who have failed at self-regulating their babymaking capabilities.

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