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Religious Tolerance logo

Same-sex marriages (SSM) in Indiana.

Part 7

2014-AUG & SEP:
Court of Appeals concludes hearing of Baskin v.
& issues ruling favoring marriage equality.horizontal rule

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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-25: Court hearing (Cont'd). The states' case may be fragile:

Court filings by Indiana Attorney General Greg Zoeller (R), and Wisconsin Attorney General Van Hollen (R) have stated that:

  • Individual states have complete freedom to deny eligibility to marry to any group for any reason. This includes same-sex couples who are unable by themselves to procreate.

  • The 14th Amendment of the U.S. Constitution does not provide either a due process or an equal protection right to marriage by same-sex couples. 1,2,3

These beliefs may be easy for the Plaintiffs' lawyers to overcome, 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 to build their family.

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2014-SEP-04: Panel of the 7th U.S. Circuit Court of Appeals rules in favor of marriage by same-sex couples:

The three-judge panel of the 7th Circuit unanimously ruled that the state marriage bans denying same-sex couples the right to marry in Indiana and Wisconsin are unconstitutional. They found that the bans violated the equal protection clause of the 14th Amendment to the U.S. Constitution which requires federal, state, county and municipal governments to treat people equally. Allowing opposite-sex couples to marry while prohibiting same-sex couples from marrying could be constitutional if the states could find some rational basis for discriminating against homosexuals and bisexuals who wish to marry. However, the panel found that none of the arguments presented by Indiana and Wisconsin were valid.

The panel issued their ruling only 9 days after the hearing. That might be a record for this court; they usually take a month or so.

This is the fourth recent decision by a Court of Appeals in favor of marriage equality affecting a total of five states: Indiana, Oklahoma, Utah, Wisconsin, and Virginia. No Court of Appeals has voted against marriage equality since the flood of over 70 cases concerning marriage equality began in mid-2013. 4


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Circuit Judge Richard Posner, who was nominated by President Reagan (R), wrote the ruling. It begins:

"Indiana and Wisconsin are among the shrinking majority of states that do not recognize the validity of same-sex marriages, whether contracted in these states or in states (or foreign countries) where they are lawful. The states have appealed from district court decisions invalidating the states’ laws that ordain such refusal.

Formally these cases are about discrimination against the small homosexual minority in the United States. But at a deeper level, as we shall see, they are about the welfare of American children. The argument that the states press hardest in defense of their prohibition of same-sex marriage is that the only reason government encourages marriage is to induce heterosexuals to marry so that there will be fewer 'accidental births,' which when they occur outside of marriage often lead to abandonment of the child to the mother (unaided by the father) or to foster care. Overlooked by this argument is that many of those abandoned children are adopted by homosexual couples, and those children would be better off both emotionally and economically if their adoptive parents were married.... "

"We will engage the states’ arguments on their own terms, enabling us to decide our brace of cases on the basis of a sequence of four questions:
1. Does the challenged practice involve discrimination, rooted in a history of prejudice, against some identifiable group of persons, resulting in unequal treatment harmful to them?

2. Is the unequal treatment based on some immutable or at least tenacious characteristic of the people discriminated against (biological, such as skin color, or a deep psychological commitment, as religious belief often is, both types being distinct from characteristics that are easy for a person to change, such as the length of his or her fingernails)? The characteristic must be one that isn’t relevant to a person’s ability to participate in society. Intellect, for example, has a large immutable component but also a direct and substantial bearing on qualifications for certain types of employment and for legal privileges such as entitlement to a driver’s license, and there may be no reason to be particularly suspicious of a statute that classifies on that basis.

3. Does the discrimination, even if based on an immutable characteristic, nevertheless confer an important offsetting benefit on society as a whole? Age is an immutable characteristic, but a rule prohibiting persons over 70 to pilot airliners might reasonably be thought to confer an essential benefit in the form of improved airline safety.

4. Though it does confer an offsetting benefit, is the discriminatory policy overinclusive because the benefit it confers on society could be achieved in a way less harmful to the discriminated-against group, or underinclusive because the government’s purported rationale for the policy implies that it should equally apply to other groups as well? One way to decide whether a policy is overinclusive is to ask whether unequal treatment is essential to attaining the desired benefit. Imagine a statute that imposes a $2 tax on women but not men. The proceeds from that tax are, let’s assume, essential to the efficient operation of government. The tax is therefore socially efficient, and the benefits clearly outweigh the costs. But that’s not the end of the inquiry. Still to be determined is whether the benefits from imposing the tax only on women outweigh the costs. And likewise in a same-sex marriage case the issue is not whether heterosexual marriage is a socially beneficial institution but whether the benefits to the state from discriminating against same-sex couples clearly outweigh the harms that this discrimination imposes."

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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. "Indiana, Utah gay marriage bans struck down," Reuters, 2014-JUN-25, at:
  2. Michelle Pemberton and Cara Anthony, "Judge strikes down Indiana ban on gay marriage," 2014-JUN-24, Indi Star, at:
  3. John Newsome, "Same-sex marriages put on hold in Indiana by federal appeals court," CNN, 2014-JUL-01, at:
  4. Robert Barnes, "Appeals court strikes down same-sex marriage bans in Indiana and Wisconsin," The Washington Post, 2014-SEP-04, at:
  5. Chicago Tribune video, embedded in Ref. 7
  6. Baskin v. Bogan and Wolf v. Walker ruling, United States Court of Appeals for the Seventh Circuit, 2014-SEP-05. Link is contained in at:
  7. , "Court: Same-sex marriage bans in Indiana, Wisconsin unconstitutional," Chicago Tribune, 2014-SEP-04, at:
  8. "Midwestern Court of Appeals Fails to Recognize Truth that Children Need, Deserve a Mom and Dad," Family Researc Council, 2014-SEP-04, at:
  9. Garrett Epps, "Is There Any Rational Case for Banning Gay Marriage?," The Atlantic, 2014-SEP-04, at:
  10. Lawrence Hurley, "U.S. court rejects gay-marriage bans as 'implausible'," Reuters, 2014-SEP-04, at:

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Copyright © 2014 by Ontario Consultants on Religious Tolerance
Initially posted: 2014-AUG-27
Latest update: 2014-SEP-06
Author: B.A. Robinson
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