States urge high court to take up gay marriage

By Scott Bauer and Michael Tarm
Associated Press

MADISON, Wis. (AP) — A stinging rejection of same-sex marriage bans in Wisconsin and Indiana, issued by a unanimous and unequivocal U.S. appeals court, has brought hope to those fighting the laws that the Supreme Court will feel pressure to rule soon in their favor.

The ruling from the 7th U.S. Circuit Court of Appeals in Chicago came Thursday, the same day 32 states asked the Supreme Court to settle the issue once and for all.

Fifteen states that allow gay marriage, led by Massachusetts, filed a brief asking the justices to take up three cases from Virginia, Utah and Oklahoma and overturn bans. And 17 other states, led by Colorado, that have banned the practice asked the court to hear cases from Utah and Oklahoma to clear up a “morass” of lawsuits, but didn’t urge the court to rule one way or another.

Celebrations Thursday over the latest legal victory for gay couples seeking to get married were tempered knowing that the bigger — and final — battle rests with the high 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 marriages bans unconstitutional.

Republican Wisconsin Attorney General J.B. Van Hollen said he would appeal Thursday’s ruling from a three-judge panel on the 7th Circuit to the Supreme Court.

The decision left no doubt how the 7th Circuit felt about Wisconsin and Indiana’s bans, criticizing the states’ justifications for them. Several times, the ruling singled out the argument that only marriage between a man and a woman should allowed because it’s tradition.

“My belief is that this court is trying to send a message elsewhere, to say it’s time to get this over with,” said Henry Greene, 51, who lives with his partner, Glenn Funkhouser, in the Indianapolis suburb of Carmel, Indiana. “It’s time to put discrimination aside.”

Keith Borden and his partner, Johannes Wallmann, are among the eight couples that challenged Wisconsin’s ban. Borden, of Madison, said he was thrilled with the latest victory.

“I will never get tired of saying once again love wins,” Borden said. “I don’t feel the battle is over, but we’re one step closer.”

The decision came unusually fast for the 7th Circuit — just nine days after oral arguments. The court typically takes months on rulings.

The opinion repeatedly mentioned the issue of tradition, noting that some, such as shaking hands, may “seem silly” but “are at least harmless.”

That’s not the case with gay-marriage bans, the court said.

“If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a harmless anachronism; it is a violation of the equal protection clause,” the opinion said.

The court’s decision won’t take effect for at least 21 days, which gives the states time to ask that it be put on hold, said Camilla Taylor, a lawyer for
Lambda Legal who argued on behalf of Wisconsin plaintiffs.

The Wisconsin and Indiana cases shifted to Chicago after attorneys general in the states appealed separate lower court rulings in June tossing the bans.

Judge Richard Posner, an appointee of Republican President Ronald Reagan, wrote the opinion. During oral arguments, Posner fired tough questions at the bans’ defenders, often expressing exasperation at their answers.

The other two judges on the panel were 2009 Barack Obama appointee David Hamilton and 1999 Bill Clinton appointee Ann Claire Williams.
The ruling echoed Posner’s comments during oral arguments that “hate” underpinned the bans. “Homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world,” the decision said.

Julaine Appling, the head of the group Wisconsin Family Action, which led the 2006 campaign to adopt the state’s constitutional amendment banning gay marriage, called the decision wrong-headed and dangerous.

“What they just legalized is not marriage,” Appling said. “It’s something else.”