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Religious Tolerance logo

Same-sex marriages (SSM) in Indiana.

Part 6

2014-AUG-26: Case: Baskin v. Bogan.
Court of Appeals holds hearing (Cont'd).

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This topic is continued from the previous essay.

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In this essay "LGB" refers to Lesbians, Gays and Bisexuals.
"SSM" refers to marriages by same-sex couples.

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2014-AUG-26: 7th U.S. Circuit Court of Appeals heard marriage equality cases from both Indiana and Wisconsin together (Cont'd):

Three Circuit Court judges were randomly chosen from the full complement of ten judges to form a three-judge panel. This is the normal procedure for appeals to a federal Circuit Court of Appeals.

However, the Attorney Generals' offices of Wisconsin and Indiana, and public supporters of the marriage ban had really bad luck. All three judges turned out to have liberal leanings. The result was predictable. Multiple judges prodded Indiana Solicitor General Thomas M. Fisher and Wisconsin Assistant Attorney General Timothy Samuelson without mercy, asking the attorneys penetrating questions to justify their claim that marriage equality was a bad idea.

Fisher argued that Indiana's ban on same-sex marriage is based on a governmental concern over the birth of unintended children. By encouraging opposite-sex couples to marry "into relationships that are durable and longstanding" unintended children would be more likely to be accepted by the couple. Judge Posner interrupted Fisher's argument, asking:

"You are concerned with the unfortunate children produced by accidental births. I'm saying, many of these [unintended children] are adopted by same-sex couples, and these children will be better off if their parents can marry, no? Isn't that obvious?"

Judge Posner further noted that many of these children were born to unmarried women and eventually adopted by same-sex parents. He asked:

"Which do you think is better for the psychological health, for the welfare of this child: to have the married same-sex parents or the unmarried?"

To which Fisher responded that he "... didn't feel like it's my job to answer."

Judge Posner concluded: "It's a matter of indifference to you."

Samuelson repeatedly used tradition as the foundational justification for the ban on marriage by loving, committed same-sex couples. Since marriage in the West has been restricted to one man and one or more women for over a thousand years, since the time of the Roman Empire, then he argued that we shouldn't break with tradition and allow same-sex couples to marry today.

Referring to the U.S. Supreme Court ruling in Loving v. Virginia during 1967, Judge Posner replied:

"It was tradition to not allow blacks and whites to marry -- a tradition that got swept away [by the Supreme Court ruling], ... [Prohibition of same sex marriage] is a tradition of hate ... and savage discrimination."

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Neil Steinberg, writing for the Chicago Sun Times, described the arguments presented by the defendants' lawyers in an article titled: "Dumb arguments against same-sex marriage don't hide bigotry."

He wrote:

"At least they’re candid. No pussyfooting around for them. They state their hate boldly, cast their slurs loudly, and only then try to back it up with whatever false theories they believe support their irrational hatreds. ..."

"The facts are simple: Gays make no worse spouses or parents than anyone else. But an argument must be made, and since the 'We hate them,' and 'They wreck straight marriage' tacks have finally been hooted down as too embarrassing, the states claim that:

  1. It’s better for children to be raised by two parents, and those parents generally are straight, so

  2. Gay marriage should be illegal. 

The first is true, sort of, though a gross simplification. But aren’t gay parents also two people? In a not-so-deft sleight of hand, the focus is put on the number, since the true concern — the sexuality of the couple — is a nonstarter. So the talk was of vague cultural norms ..." 1

Both Solicitor General Thomas M. Fisher from Indiana and and Assistant Attorney General Timothy C. Samuelson from Wisconsin used similar arguments as have been seen in many recent cases. The arguments have been presented in federal District Courts, federal Courts of Appeal, state courts and county courts throughout the United States. A major part of their defense relied on a procreation argument -- their perceived need to restrict marriage to couples who can conceive children by themselves, without external assistance.

This is an argument that is easy for the Plaintiffs' lawyers to attack, because opposite-sex couples have always been allowed to marry even if:

  • One or both of them is infertile,

  • The wife cannot conceive because of her age, and/or

  • The couple has decided to not have any children.

A same-sex couple and an infertile opposite-sex couple are in the same situation; some may conceive with the help of a fertility clinic, either through artificial insemination or in-vitro fertilization. Alternately they might resort to a surrogate parent or to an adoption agency.

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There is a general agreement among Democrats, Independents, and Republicans that individual states have the authority to define whom may marry within their boundaries. But they disagree about whether the states:

  • Have complete freedom to discriminate against any group of couples, or

  • Whether they must define marriage in a way that does not violate the due process and equal protection clauses of the 14th Amendment of the U.S. Constitution.

The 14th Amendment requires the federal and state governments to treat individuals equally, Thus, most political liberals believe that states must treat opposite-sex couples and same-sex couples equally. However, many conservatives believe that states' marriage laws and constitutional amendments do not have to conform to the 14th Amendments. In particular, an amendment to a state Constitution passed by a vote of the public trumps the federal Constitution. More details.

As expected, lawyers from both states who represented the plaintiffs, based their case on the due process and equal protection clauses of the 14th Amendment of the U.S. Constitution. By late 2014-AUG, there have been rulings made by about 36 county, state, federal District Courts, and federal Circuit Courts of Appeal. All but one case has been decided ion favor of marriage equality; all were based on the due process and/or equal protection clause of 14th Amendment.

Meanwhile, Indiana Attorney General Greg Zoeller (R), and Wisconsin Attorney General Van Hollen (R) have argued that individual states have complete freedom to define eligibility to marry in any way. Court filings by lawyers from Indiana have claimed that:

"There is no due process or equal protection right to have one’s out-of-state same-sex marriage recognized at home, and no due process or equal protection right to same-sex marriage outright." 2,3,4

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above notes. The hyperlinks are not necessarily still active today.

  1. Neil Steinberg, "Dumb arguments against same-sex marriage don’t hide bigotry," Chicago Sun Times, 2014-AUG-28, at:
  2. Anne Sweeney, Meredith Rodriguez, "Lawyers for Indiana, Wisconsin grilled in court over gay marriage bans," The Los Angeles Times, 2014-AUG-24, at:
  3. "Federal appeals court weighs Wisconsin and Indiana gay marriage bans." The Guardian, 2014-AUG-26, at:
  4. Jill Disis & Tim Evans, "Judges grill attorneys in gay marriage fight," Indianapolis Star, 2014-AUG-26, at:

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Copyright © 2014 by Ontario Consultants on Religious Tolerance
Initially posted: 2014-AUG-28
Latest update: 2014-SEP-06
Author: B.A. Robinson
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