About 150 spectators, many of whom stood in line for nearly three hours, crowded into a courtroom at the Dirksen Federal Courthouse in Chicago as the 7th Circuit Court of Appeals heard marriage equality cases from Indiana and Wisconsin.
Both states are within the 7th Circuit, so each state's casesthree from Indiana, one from Wisconsinwere heard at the same time. The panel presiding over the hearing was comprised of Judges Richard Posner, David F. Hamilton and Ann Claire Williams.
The panel said they were "poking holes" in the weakest parts of the cases the attorneys were making. As Indiana Solicitor General Thomas Fisher opened, Posner immediately began grilling him on the state's contention that marriage laws are ostensibly to ensure that children are born into stable homes, and that the number of children born out of wedlock is low.
Posner suggested that the state might be contributing to that instability, however, by impeding efforts of same-sex parents to get the identical legal and financial benefits of marriage.
"Wouldn't those children like their parents to be married?" Posner asked. "Wouldn't it help them if their parents were married?"
But Fisher contended that marriage laws were a "mechanism" the state used to cut down on the number of "unintentional" births.
Hamilton, however, asked why the state government fixated on that one particular problem, while Williams suggested that "intent" was probably not a relevant issue in this matter since a good number of gay and lesbian parents would have strong intentions behind their decisions to raise families.
Camilla Taylor of Lambda Legal, who argued for the Indiana plaintiffs, was asked what fundamental right they were being deprived of, to which Taylor answered that it was largely a matter of autonomy. Taylor had intended to speak about Henry Greene and Glenn Funkhouser, the most recent plaintiffs to join the lawsuit, early in her argument, but was cut off by Posner. But shortly before she finished speaking, she spoke of their family, which included their son, Casey, who sat with them in the chambers.
Indiana's law, she said, "not only demeans couples, but it has also humiliated the children in these families."
Kenneth Falk of ACLU, Taylor's co-litigator, added that Indiana had no other means by which it encouraged "responsible" procreation and said that the state uses other means to encourage bonds between non-procreating, opposite-sex spouses.
Wisconsin Assistant Attorney General Timothy C. Samuelson bore the brunt of the judge's questioning. He initially suggested that "tradition" was a motivating facor behind the state's ban on marriage.
But Hamilton would not accept that. "Tradition is not grounds for this'We've been doing this stupid thing for a thousand years and so we're just going to keep doing it?'"
Williams added, "Loving [v. Virginia] threw out that kind of distinction. I don't think you're going to get around Loving.'"
Hamilton then said, "It reminds me of several states' response to Brown vs. the Board of Education."
Samuelson's questioning became more heated, especially once the judges pressed him on who in Wisconsin would actually be harmed should gay marriage be allowed. Finally, he told the judges that his yellow light, indicating his time was almost up, was on.
"The yellow light won't save you," said Williams.
"It was worth a shot," said Samuelson.
The panel also appeared unmoved by his assertion that the law was a matter that should be voted upon, either by a ballot initiative, as it was in Wisconsin, or legislatively.
"Every time a law is invalidated as unconstitutional, a democratic process is overridden," Posner said.
Samuelson said that the decision handed down by the district court placed an unfair burden on Gov. Scott Walker and the state government, because it did not spell out exactly how the state should carry out recognition of same-sex couples.
"I should think Gov. Walker would want that," said Posner. "Do you think the governor would want to be micromanaged?"
Williams added, "It means that opposite-sex and same-sex couples should be treated the same. It's just like any other directive a district court issues. A district court can't look at every little thing."
James Esseks of ACLU, arguing on behalf of the Wisconsin plaintiffs said that, while "there is a small list of benefits couples can get under domestic registry, that list is tiny compared to marriage."
He later added, "We need to show that there is no rational reason for this law and we've done that in spades."
Following the hearing, Taylor said she was pleased with how it went. "I feel very positive and optimistic. We put on a great argument for our side."
She noted that the panel "was particularly troubled by the impact of these laws on childrenthey knew that it was not fair."
In a statement released after the hearing, Esseks added, "As public support for marriage equality continues to swell across the nation, we are excited to be here today, making the case for Indiana and Wisconsin couples who simply want the freedom to marry and make that public, lifetime commitment to the ones they love. We believe that, every day, we are one step closer to that freedom being extended to all loving couples, and the ACLU will not stop working until we make marriage equality a reality in every state in the country."
Posner, the panel's most conservative member, was appointed by Ronald Reagan, while Williams and Hamilton were appointed by Bill Clinton and Barack Obama, respectively.
See audio link here: media.ca7.uscourts.gov/sound/external/rt.1.14-2386_08_26_2014.mp3 .
From ACLU and Lambda legal:
Chicago The Seventh Circuit Court of Appeals heard oral arguments in lawsuits seeking to strike down discriminatory marriage bans in Indiana and Wisconsin. The three-judge panel included Richard Posner, Ann Claire Williams and David F. Hamilton. Attorneys from Lambda Legal argued on behalf of five plaintiff couples from Indiana and attorneys from The American Civil Liberties Union argued on behalf of thirteen plaintiff couples from Indiana and Wisconsin
"Courts across the country have ruled in favor of love, freedom and justice for same-sex couples, and we're hopeful that this court will affirm our plaintiffs' commitment to each other. Some of our plaintiffs are advanced in age, some have children, and some are battling extreme medical circumstances. They are just a small sample of Hoosier families that urgently need the protections of marriage as soon as possible." said Camilla Taylor, Marriage Project Director for Lambda Legal. "The legal precedent for striking down discriminatory marriage bans is growing almost every week and with each victory, Indiana's ban on marriage for same-sex couples becomes increasingly unjustifiable."
"As public support for marriage equality continues to swell across the nation, we are excited to be here today, making the case for Indiana and Wisconsin couples who simply want the freedom to marry and make that public, lifetime commitment to the ones they love," said James Esseks, Director of the ACLU Lesbian Gay Bisexual and Transgender Project. "We believe that, every day, we are one step closer to that freedom being extended to all loving couples, and the ACLU will not stop working until we make marriage equality a reality in every state in the country."
Fujii v. Governor was filed on March 14, 2014 by the American Civil Liberties Union of Indiana, the national ACLU, and the Lemieux Law Office of Indianapolis on behalf of six couples, a widow, and two children of same-sex parents. One of the plaintiffs, Midori Fujii, lost her wife, Kris Brittain, in 2011 after a two-year struggle with ovarian cancer. After Brittain's death, under Indiana law Midori was considered a legal stranger and could not make decisions about Brittain's funeral. Because their California marriage is not recognized in Indiana, Fujii was also required to pay more than $300,000 in state inheritance tax on all of the property that her wife left to her, including their shared home. If Fujii had been in an opposite-sex marriage she would have paid no inheritance tax on the property.
Wolf v. Walker was filed in Wisconsin on February 3, 2014 by the American Civil Liberties Union, challenging Wisconsin's discriminatory ban on same-sex marriage on behalf of eight couples seeking the freedom to marry or to have their out-of-state marriages recognized. Two of the plaintiffs, Kami Young and Karina Willes of West Milwaukee, were legally married last year in Minnesota and have a newborn daughter. Only Young, however, as the biological mother, is recognized as a legal parent on the birth certificate.
Baskin v. Bogan was filed by Lambda Legal on March 10, 2014 in the United States District Court for the Southern District of Indiana. Shortly thereafter, Lambda Legal filed a motion seeking immediate relief for Niki Quasney, Amy Sandler and their two children ages 3 and 1. Five years ago, Niki was diagnosed with stage four ovarian cancer, enduring multiple surgeries and years of chemotherapy. After nearly 14 years together, the couple married in Massachusetts last year. In two decisions issued in April and May, the court ordered the State of Indiana to recognize their out-of-state marriage. On June 25th, U.S. District Court Judge Richard L. Young ruled that Indiana's discriminatory ban on marriage for same-sex couples is unconstitutional. Two days later, the Seventh Circuit Court of Appeals granted Indiana Attorney General Greg Zoeller's emergency motion to stay the freedom to marry for all Hoosiers achieved through Lambda Legal's victories in Baskin v. Bogan, and also consolidated the case with two other marriage cases in Indiana, Lee v. Abbott and Fujii v Governor. After Attorney General Greg Zoeller attempted to block those victories, on July 1st, the Seventh Circuit Court of Appeals issued an order compelling the State of Indiana to continue to recognize the marriage of Lambda Legal plaintiffs Amy Sandler and Niki Quasney while the case proceeds.
Read more about the families in the ACLU's case here:
https://www.aclu.org/lgbt-rights/midori-fujii-et-al-v-indiana-governor-et-al
www.aclu.org/lgbt-rights/wolf-and-schumacher-v-walker .
Read more about the families in Lambda Legal's case here:
www.lambdalegal.org/take-action/love-unites-us/indiana .
James Esseks will be arguing for the American Civil Liberties Union in Walker v. Wolf. He is joined by Hans J. Germann, Gretchen E. Helfrich and Frank Dickerson from the law firm of Mayer Brown. Kenneth Falk, Legal Director of the American Civil Liberties Union of Indiana will argue in Midori Fujii et al v. Indiana governor et al.
Paul D. Castillo, Staff Attorney, and Camilla Taylor, Marriage Project Director, are handling the case Baskin v. Bogan for Lambda Legal. They are joined by Barbara Baird of the Law Office of Barbara J. Baird in Indianapolis, Indiana, as well as Jordan Heinz, Brent Ray, Melanie MacKay, Dmitriy Tishyevich and Scott Lerner of Kirkland & Ellis LLP.