MICHAEL TARM
Associated Press
CHICAGO (AP) — A U.S. appeals court issued a scathing, unequivocal ruling Thursday declaring that gay marriage bans in Wisconsin and Indiana were unconstitutional, on the same day that 32 states asked the Supreme Court to settle the issue once and for all.
The U.S. 7th Circuit Court of Appeals in Chicago was the fourth to hear arguments on the issue. The decision from a normally slow and deliberative court was released a little more than a week after oral arguments.
The unanimous, 40-page decision from a three-judge panel blasted the states’ justifications for their bans, several times singling out the argument that only marriage between a man and a woman should be allowed because it’s — simply — tradition.
There are “bad traditions that are historical realities such as cannibalism, foot-binding, and suttee, and traditions that … are neither good nor bad — such as trick-or-treating on Halloween,” the ruling says. “Tradition per se therefore cannot be a lawful ground for discrimination — regardless of the age of the tradition.”
It also laid into another argument from the states that gays should not be allowed to marry because, on their own, they can’t procreate, saying that rationale “is so full of holes that it cannot be taken seriously.”
Wisconsin Attorney General General J.B. Van Hollen said he would appeal the ruling to the U.S. Supreme Court.
Also Thursday, Massachusetts and 14 other states where same-sex marriage is legal filed a brief asking the justices to overturn other states’ bans on gay marriage. Meanwhile, Colorado and 16 other states that have banned same-sex marriage filed a separate brief asking the court to rule one way or the other to clear up a “morass” of lawsuits.
Since last year, the vast majority of federal rulings have declared same-sex marriage bans unconstitutional. Supreme Court justices typically take up issues only when lower courts disagree. But in this case, states are asking the court to settle the issue nationwide once and for all.
The Wisconsin and Indiana cases shifted to Chicago after the states appealed lower court rulings tossing the bans.
The court’s decision won’t take effect for at least 21 days, said Camilla Taylor, a lawyer for Lambda Legal who argued on behalf of Wisconsin plaintiffs. That should give the states time to ask the Supreme Court to put it on hold, she said.
Between the bans being struck down and a 7th Circuit order reinstating them as the appeals process ran its course, hundreds of gay couple in both states rushed to marry.
Gay couples heralded Thursday’s decision.
“I have hope that we’re going to be able to live in Wisconsin with full equality, that we won’t be considered second-class citizens,” said Roy Badger, of Milwaukee, who sued with partner Garth Wangemann to overturn Wisconsin’s same-sex marriage ban.
In Indiana, some couples gathered at an office of the American Civil Liberties Union — whose lawyers represented many of the plaintiffs — after they received an email from one attorney proclaiming, “WE WON!!!”
But other people were unhappy.
“Marriage policy should be about protecting the established needs of children and society, not affirming the variable desires of certain political activists,” said Micah Clark, executive director of the American Family Association of Indiana.
The decision came unusually fast for the 7th Circuit — just nine days after oral arguments. The court typically takes months on rulings.
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.
The opinion repeatedly mentions 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 says.
A constitutional amendment approved in 2006 by voters banned gay marriage in Wisconsin, while state law prohibited it in Indiana.
The next appeals court to take up the question will be the San Francisco-based 9th Circuit, which will hear arguments Monday on gay marriage bans in Idaho, Nevada and Hawaii.
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Follow Michael Tarm on Twitter at http://twitter.com/mtarm
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Associated Press reporters Todd Richmond and Scott Bauer in Madison, Wis.; Tom LoBianco in Indianapolis; and Mark Sherman in Washington, D.C., also contributed to this report.
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