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Religious Tolerance logo


Same-Sex Marriages (SSMs)
in Wisconsin

Part 8: 2014-AUG & SEP:
Appeal heard before a 3-judge panel of
the 7th U.S. Circuit Court of Appeals.
Court rules in favor of marriage equality.

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This topic is continued from the previous essay

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wedding ringsHearings before the panel of the 7th U.S. Circuit Court of Appeals:

Both Assistant Attorney General Timothy C. Samuelson from Wisconsin, and Solicitor General Thomas M. Fisher from Indiana used the same procreation-based arguments as have been seen in many recent cases. They have been heard in federal District Courts, federal Courts of Appeal, state courts and county courts across the country. They based their defense largely on their perceived need to restrict marriage to couples who can conceive children by themselves, without external assistance.

This is a weak argument because opposite-sex couples have always been allowed to marry in Wisconsin, even if:

  • One or both of them is infertile.

  • The wife cannot conceive because of her age.

  • 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.

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 that they disfavor. This is often called the "tyranny of the majority."

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, state, county, and municipal governments to treat individuals -- and thus couples -- 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 Amendment. In particular, any amendment to a state Constitution passed by a majority vote of the public trumps the federal Constitution. More details.

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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 in favor of marriage equality; all were based on the due process and/or equal protection clause of 14th Amendment.

Meanwhile, Wisconsin Attorney General Van Hollen (R) and Indiana Attorney General Greg Zoeller (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." 1,2,3

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Webmaster's comment (bias alert):

Many news media tend to follow either the Republican/conservative or Democratic/liberal position:

  • Conservative media generally stress how a positive ruling for marriage equality violates the expressed will of the people who once voted for a constitutional amendment to ban marriage for same-sex couples. They generally don't mention that the amendment dates back 6 or 10 years and that public opinion has since changed greatly -- often from being opposed to marriage equality to being in favor. They rarely, if ever, quote the result of recent public opinion polls in the state.

  • Liberal media stress how a positive ruling for marriage equality upholds the 14th Amendment of the U.S. Constitution. They often do not stress the state constitutional amendment or state statutes that banned same-sex marriage long ago. If they mention them, then they will often quote up-to-date statistics to show how opinion has switched in recent years.

If a member of the public reads only conservative or liberal news outlets, then they may well be persuaded by one point of view.

If they read both liberal and conservative outlets, they will realize how the news is often intentionally warped. Further, they will hone their analytic abilities and sharpen what we refer to as their "BullSpit" detector.

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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 two state marriage bans denying same-sex couples the right to marry in Wisconsin and Indiana were 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 of judges found that none of the arguments presented by Indiana and Wisconsin were valid.

The ruling was announced only 9 days after the hearing. That might be a record for this court; they usually take a month or more.

This is the fourth recent decision by a Court of Appeals in favor of marriage equality. These court rulings affect a total of five states: Indiana, Oklahoma, Utah, Virginia and Wisconsin. No Court of Appeals has voted against marriage equality since the flood of court cases began in 2014-JUN. 4

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." 5

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References used:

The following information source was used to prepare and update the above essay. The hyperlink is not necessarily still active today.

  1. "Wisconsin AG files appeal in same-sex marriage ruling," LGBTQNATION,™  2014-JUL-10, at: http://www.lgbtqnation.com/
  2. "Same-sex couples don't think full 7th Circuit Court of Appeals should hear arguments," NBC15, 2014-JUL-21, at: http://www.nbc15.com/
  3. Jessica VanEgeren, "Petition to drop same-sex marriage appeal delivered to J.B. Van Hollen's office," Cap Times, 2014-AUG-22, at: http://host.madison.com/
  4. Anne Sweeney, Meredith Rodriguez, "Lawyers for Indiana, Wisconsin grilled in court over gay marriage bans," The Los Angeles Times, 2014-AUG-24, at: http://www.latimes.com/
  5. 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: http://www.washingtonpost.com/

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Home > Religious info. > Basic > Marriage > SSM > Menu > Wisconsin > here

Home > "Hot" topics > Homosexuality> SSM > Menu > Wisconsin > here

Copyright © 2014 by Ontario Consultants on Religious Tolerance 
First posted: 2014-AUG-27
Latest update: 2014-SEP-07
Author: B.A. Robinson

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