A three-judge panel of the Seventh Circuit Court of Appeals listened to each side make its case Tuesday and sometimes responded with questions.
The court is now deciding whether to uphold or strike down Wisconsin's and Indiana's bans on same-sex marriage. The two cases have been consolidated.
In June, federal judges in both states determined the bans are unconstitutional. The states are fighting to have those decisions thrown out.
Both sides had the chance to present brief arguments before the panel in Chicago. The attorney representing the Wisconsin Department of Justice, Timothy Samuelson, told judges the state defends the ban on gay and lesbian unions, in deference to the “tradition” of heterosexual marriages.
The Hon. Richard A. Posner said that argument doesn’t hold weight, given that for decades, it was a tradition to ban interracial marriages. Posner urged Samuelson to come up with another reason the panel should uphold the ban. Samuelson argued that overturning the ban could lead to a breakdown in marriage. He said that happened when “no fault” divorces were allowed, leading to an increase in divorce. In this exchange, Posner did not appear convinced:
Posner: “What, speculatively, might happen that we should worry about (if gay marriage was allowed)?”
Samuelson: “The only example I can give is the no fault divorces, and there might be a similar…”
Posner: “OK, what might be similar? Give me an example of similar.”
Samuelson: “It would potentially devalue the institution of marriage, and make fewer people likely to enter into it.”
Posner: “Why would fewer heterosexuals marry, because homosexuals marry?”
Samuelson: “Your honor, I haven’t anticipated this, I’d be happy to brief it in supplemental briefings, if you would like...”
Posner: “How could you brief it, you don’t know anything about it?”
Samuelson: “I don’t know anything about it now, but respectfully, the only example I can give is the no fault divorce.”
Judges also challenged attorneys appearing on behalf of the same-sex couples who are fighting the bans on gay marriage.
James Essex of the American Civil Liberties Union argued a previous ruling, that defended civil rights for gay and lesbians in Colorado, helps make the case for gay marriage in Wisconsin.
The Hon. David F. Hamilton questioned that justification. He said unlike Wisconsin’s same-sex marriage ban, the Colorado decision involved taking away rights that had been granted.
Hamilton: “We really don’t have that here.”
Essex: “Well, your honor, there certain a – in Romer, Romer didn’t just take away, it is true…”
Hamilton: “It created new barriers to legislation that would protect people from sexual orientation discrimination, correct?”
Essex: “It did, because the state of Colorado didn’t at the time have a sexual orientation discrimination law. But that amendment prevented it from doing that, and in addition it took away rights that existed in certain municipalities.”
Hamilton: “Took away rights, created new obstacles.”
The three-judge panel ended the session by saying it would take the case under advisement and stand in recess.
It was not clear how long it might take for the court to make a decision on whether to uphold the same-sex marriage bans in Wisconsin and Indiana.
The validity of hundreds of same-sex unions in Wisconsin is up in the air, pending action in the courts. Gay and lesbian couples flocked to courthouses in June to get married, immediately after a federal judge overturned the state's ban on same-sex marriage. The weddings took place for a week, before the judge halted them, as the issue makes its way through the courts.