Why it matters: Courts across the country have struggled with the issue of same-sex marriage in a variety of contexts and cases. But a recent decision from the Seventh U.S. Circuit Court of Appeals authored by noted jurist Judge Richard Posner may have flipped the script and left states with little ground on which to defend their prohibition of same-sex marriage. Focusing less on the constitutional debate, Judge Posner instead found the decision a “straightforward” one “about the welfare of American children.” Flatly rejecting the arguments proffered by Indiana and Wisconsin that states need to channel procreative, heterosexual sex into marriage, the three-judge panel unanimously found the states’ laws discriminatory. “The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction – that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended – is so full of holes that it cannot be taken seriously,” Judge Posner wrote. With the ruling, the seventh Circuit joined two other federal appellate panels in striking down bans on same-sex marriage, following the Fourth and Tenth Circuits, as well as last year’s U.S. Supreme Court decision in U.S. v. Windsor.

Detailed Discussion

The states of Indiana and Wisconsin both prohibited same-sex marriage within their borders and refused to recognize same-sex marriages legally performed in other jurisdictions. A federal district court sided with plaintiffs who challenged the laws, and the seventh Circuit upheld the ruling on appeal.

The harm in being denied the right to marry is considerable, the panel noted. “Marriage confers respectability on a sexual relationship; to exclude a couple from marriage is thus to deny it a coveted status,” the court wrote. “Because homosexuality is not a voluntary condition and homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world, the disparagement of their sexual orientation, implicit in the denial of marriage rights to same-sex couples, is a source of continuing pain to the homosexual community.”

Tangible benefits – the marital testimonial privilege, survivor benefits, the right to adopt children jointly, and the right to file state tax returns jointly, for example – are also significant, the court recognized.

Judge Posner focused on the states’ assertion that banning same-sex marriage was justified by the states’ interest in channeling procreative sex into marriage.

Tackling Indiana first, Judge Posner wrote that if the state truly intended to only encourage procreative sex in marriage, it would not allow infertile persons to marry, or have marriage licenses expire when a spouse became infertile because of age or disease. Instead, the state actually carves out an exception allowing first cousins aged 65 or older to marry – essentially creating a category of infertile marriage.

“Indiana has thus invented an insidious form of discrimination: favoring first cousins, providing they are not of the same sex, over homosexuals,” the court said, calling Indiana’s argument “impossible to take seriously.”

“Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents – model citizens really, so have no need for marriage,” Judge Posner wrote.

Further, the state’s argument ignored adoption, “an extraordinary oversight,” the panel said, adding that if “marriage is better for children who are being brought up by their biological parents, it must be better for children who are being brought up by their adoptive parents.”

Turning to Wisconsin’s constitutional amendment limiting marriage to one woman and one man, the court reached a similar conclusion, further tossing aside the state’s reliance on tradition. “Tradition per se has no positive or negative significance,” Judge Posner wrote. “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.”

While many heterosexuals may disapprove of same-sex marriage, “there is no way they are going to be hurt by it in a way that the law would take cognizance of,” the court noted. On the other hand, a refusal to recognize same-sex marriage harms not only homosexuals seeking to marry but children as well, “by telling them they don’t have two parents, like other children.”

“[M]ore than unsupported conjecture that same-sex marriage will harm heterosexual marriage or children or any other valid and important interest of a state is necessary to justify discrimination on the basis of sexual orientation,” the panel concluded. “As we have been at pains to explain, the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.”

To read the opinion in Baskin v. Bogan, click here.