- The Washington Times - Thursday, September 4, 2014

Gay marriage laws in Wisconsin and Indiana were struck down Thursday by a federal appellate court, adding another victory to gay plaintiffs and moving the issue closer to the Supreme Court.

The unanimous Thursday ruling by the 7th U.S. Circuit Court of Appeals stood in stark contrast to the one issued a day before by a federal judge in Louisiana. Whereas the Louisiana court accepted that state’s defenses of its law defining marriage as the union of a man and a woman, the appellate court rejected — sharply at times — the arguments of Wisconsin and Indiana officials for their laws.

“The discrimination against same-sex couples is irrational, and therefore unconstitutional, even if the discrimination is not subjected to heightened scrutiny,” wrote Judge Richard Posner in an opinion joined by Judge Ann Claire Williams and Judge David F. Hamilton.

“As we have been at pains to explain,” they said, “the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural, they are totally implausible.”

Gay marriages are not expected to be conducted immediately in either state, however.

Wisconsin Attorney General J.B. Van Hollen issued a statement reminding clerks that a stay issued earlier by a federal judge “remains in effect,” and Wisconsin’s law “limiting marriage to between one man and one woman as well as all other related state laws are in full force and effect until this case is finally resolved by the United States Supreme Court.”

“The status quo has not changed with today’s ruling,” Mr. Van Hollen said, adding that the state will file its appeal petition with the Supreme Court in a timely manner.

“It seems clear that a final resolution of the constitutional issues involving states’ authority over their marriage licenses will need a decision from our nation’s highest court,” said Indiana Attorney General Greg Zoeller.

“Since the Supreme Court has already issued stay orders in two Circuit decisions, it seems appropriate that today’s decision also be stayed. Hopefully, for the interests of everyone on both sides of these cases, the Supreme Court will make a ruling sooner rather than later,” he said.

Gay marriage supporters said the ruling in Baskin v. Bogan in Indiana and Wolf v. Walker in Wisconsin should persuade the Supreme Court to legalize gay marriage nationwide.

The ruling “demolishes the arguments and unsubstantiated claims made by opponents of the freedom to marry,” said Evan Wolfson, president of Freedom to Marry. “Judge Posner’s authoritative opinion points the way, and the Supreme Court should move swiftly now to end marriage discrimination nationwide, without prolonging the harms and indignity that too many couples continue to endure in too much of the country,” he said.

The 40-page Posner decision delved into marriage, adoption, fertility and domestic partnerships, and took merciless aim at Indiana’s and Wisconsin’s laws that ban gay marriage while permitting elderly or infertile first cousins to marry.

“Elderly first cousins are permitted to marry because they can’t produce children; homosexuals are forbidden to marry because they can’t produce children,” Judge Posner wrote. This argument “is impossible to take seriously.”

Judge Posner also declared homosexuality “an immutable (and probably an innate, in the sense of inborn) characteristic” and even proffered a possible reason for why homosexuality could occur genetically.

Homosexuality, like menopause, could be an evolutionary way to reduce procreation “by some members of society” to “free them to provide child caring assistance to their procreative relatives, thus increasing the survival and hence procreative prospects of these relatives,” Judge Posner opined. “This is called the ‘helper in the nest’ theory,” he said.

Monday is another big day for the marriage issue, as a panel of judges of the 9th Circuit Court of Appeals is scheduled to hear arguments involving traditional marriage laws in Idaho, Hawaii and Nevada.

The gay plaintiffs will likely get a sympathetic ear: All three of Monday’s judges — Judge Stephen Reinhardt, Judge Marsha S. Berzon and Judge Ronald M. Gould — have already ruled in favor of gay rights.

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