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Wis., Ind. Same-Sex Marriage Bans Unconstitutional, 7th Cir. Rules

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By Mark Wilson, Esq. on September 04, 2014 5:04 PM

A mere nine days after oral argument, the Seventh Circuit on Thursday affirmed a trial court decision striking down same-sex marriage bans in Indiana and Wisconsin. It's the latest in a near-unanimous string of court rulings to strike down such bans as unconstitutional.

The Seventh Circuit's decision was fast -- and unsurprising. At oral arguments, Judge Richard Posner, who wrote the opinion, was incredibly dismissive of state arguments that the bans were necessary.

Suspect Lines

Like other courts, the Seventh Circuit didn't afford strict or even intermediate scrutiny to the same-sex marriage bans, as the U.S. Supreme Court has never applied such a high level of review to cases involving sexual orientation. But Posner didn't leave the level of review at vanilla rational basis, either. Instead, he applied what's often called "rational basis plus" because the discrimination occurred "along suspect lines"; that is, "occurring against an historical background of discrimination against the persons who have that [immutable] characteristic."

To that end, Posner created a (seemingly) brand-new four-step analysis for determining whether Wisconsin and Indiana's bans were constitutional:

  1. Do the bans involve discrimination, rooted in a history of prejudice?;
  2. Is the unequal treatment based on an immutable characteristic?;
  3. Does the discrimination have some benefit to society?; and
  4. Is the unequal treatment " essential to attaining the desired benefit"?

Even if the form of this new test gives the Supreme Court something to squabble about, the test isn't actually substantively different from every other type of constitutional review involving equal protection claims.

Posner's sleight of hand is necessary because he wanted to avoid a much larger polemic: whether same sex marriage is a "fundamental right." Because defining the bounds of a fundamental right is subjective and can determine the outcome of the case, Posner instead chose to keep the level of analysis at rational basis "plus," which prevents the Supreme Court from fighting over the scope of fundamental rights -- a distraction from the issue at hand.

No Good Reason

Immediately agreeing that sexual orientation was an immutable characteristic, and that homosexuals have suffered a history of prejudice, Posner moved to each state's justifications for their bans in turn. Indiana's sole contention was that barring same-sex marriage was good for children, as it directed "unintentionally procreative sex into a legal regime in which the biological father is required to assume parental responsibility."

Posner was extremely critical of this justification. Somehow, marriage encourages the raising of children who were basically an accident? "Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure."

In true law and economics fashion, Posner threw incentives into the mix: If the state is so concerned about unwanted children, it would be in the state's best interest to encourage adoption, right? And who is going to adopt? Same-sex couples; and marriage incentivizes them to adopt more. "Married homosexuals are more likely to want to adopt than unmarried ones if only because of the many state and federal benefits to which married people are entitled."

History and Tradition

Wisconsin offered up five reasons for its same-sex marriage ban: Indiana's "accidental births" argument (already shot down), tradition, prudence, the democratic process, and an analogy to no-fault divorce, which the state only half-heartedly defended.

Quoting Oliver Wendell Holmes, Posner quickly put to bed the "tradition" argument: "Holmes thought it 'revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.'" He also shot down prudence (the state never offered a reason why it should "wait and see" what happens in other states) and the democratic process ("Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law").

At the end of the day, we knew this was going to happen: In light of Windsor, Lawrence, and Romer, there's really no reason a state can give that justifies barring same-sex marriage.

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