7th Circuit Affirms District Court Ruling Invalidating Wisconsin’s Marriage Amendment

Posted on Categories Civil Rights, Constitutional Interpretation, Constitutional Law, Public, Seventh Circuit, Western District of Wisconsin

same sex hand holdingJudge Richard Posner minces no words. In an opinion dated September 4, Judge Posner wrote for a unanimous 7th Circuit panel, affirming the Wisconsin district court’s decision invalidating Wisconsin’s so-called marriage amendment. (I reviewed the district court decision here.) Wisconsin’s case—Wolf v. Walker—was heard with its equivalent from Indiana—Baskin v. Bogan—and both states saw their prohibitions on same-sex marriage crumble.

The court confines its analysis to equal protection, avoiding the Fourteenth Amendment substantive due process argument (marriage as a fundamental right) that both sides pressed. As an equal protection analysis, the court sets up the legal question as one that requires heightened scrutiny because, as the court determined, sexual orientation is an immutable characteristic rather than a choice (and, Judge Posner added, “[w]isely, neither Indiana nor Wisconsin argues otherwise” (*9)).

Because heightened scrutiny applied, the state needed to provide an important state interest for treating same-sex couples differently when it came to marriage, and the discriminatory means chosen (denying same-sex couples the right to marry in Wisconsin and refusing to recognize same-sex marriages performed in states that sanction such unions) must be substantially related to achieving that important state interest. In true Posnerian style, Judge Posner discussed the equal protection analysis in terms of costs and benefits. (See **4-7.) That is, “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” (*6).

The court found no important state interest to satisfy the heightened scrutiny analysis. As Judge Posner noted, “[T]he only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously” (*7). In fact, the court found none of the arguments proffered by either state as rational, much less serving important state interests. “The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subject to heightened scrutiny . . .” (*8). Because the court found an equal protection violation (whether it used heightened scrutiny or rational basis analysis), the court avoided the due process argument.

Wisconsin adopted one of Indiana’s arguments for its reasons to prohibit same-sex marriage and added four other arguments. The first, which it adopted from Indiana, is the idea that the state needs opposite-sex marriage in order to channel procreative sex into marriage relationships. The second is that marriage limited to heterosexuals is traditional and, therefore, appropriate. The third is that the societal consequences to allowing same-sex marriages are unknown so the state should then be permitted to move cautiously. The fourth is that whether to allow or deny same-sex marriages should be left to the democratic process. The final is that allowing same-sex marriage makes marriage “fragile and unreliable” in much the same way that no-fault divorce does; the effect is “a danger of ‘shifting the public understanding of marriage away from a largely child-centric institution to an adult-centric institution focused on emotion.’” (See **27-28.)

Taking each argument in turn, Judge Posner finds no rational much less important state interests. Insofar as the state needs to channel procreative sex, such a rationale suggests that the state thinks “that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured . . . to marry” (*19), but that same-sex couples, who cannot naturally produce children, thus have no need for marriage. Judge Posner sums up the states’ position: “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” (**19-20).

The state’s argument that opposite-sex marriage is needed to channel procreative sex was further undermined by the state’s policy allowing infertile opposite-sex couples (and fertile opposite-sex couples who do not intend to have children) to marry and its statutory exception regarding first cousins. According to Wisconsin Statute section 65.03(1), first cousins are prohibited from marrying in Wisconsin, unless the woman is at least 55 years old (and presumably no longer able to bear children) or unless either party can prove (by affidavit signed by a physician), at the time they apply for a marriage license, that he or she is permanently sterile. Judge Posner explained the first-cousin exception and mused,

If the state’s only interest in allowing marriage is to protect children, why has it gone out of its way to permit marriage of first cousins only after they are provably infertile? The state must think marriage valuable for something other than just procreation—that even non-procreative couples benefit from marriage.

Second, the court easily dispenses with the state’s tradition argument, citing Loving v. Virginia, the 1967 United States Supreme Court case that struck down state bans on interracial marriage. Judge Posner pointed out how the statutes banning interracial marriage were “in one respect less severe” than Wisconsin’s prohibition of same-sex marriage. (*29) That is, members of any racial group could marry; they just had to marry someone of their same race. A gay or lesbian in Wisconsin, though, can marry only if he or she marries someone of the opposite sex, which is tantamount to saying they cannot marry at all. “If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a harmless anachronism; it is a violation of the equal protection clause . . . .” (*29)

Third, the court dismissed the state’s argument to “go slow” before changing the definition of marriage. The court cited a recent study that found “allowing same-sex marriage has no effect on the heterosexual marriage rate” (*32). In any event, the court continued, only 2.8% of Wisconsin residents are estimated to identify as LGBT. “Given how small the percentage is, it is sufficiently implausible that allowing same-sex marriage would cause palpable harm to family, society, or civilization to require the state to tender evidence justifying its fears; it has provided none” (*32). As well, even for those who disapprove of same-sex marriage, “there is no way they are going to be hurt by it in a way that the law would take cognizance of. Wisconsin doesn’t argue otherwise” (*34).

Fourth, the state’s argument that the ban on same-sex marriage was the outcome of the democratic process and process should prevail also crumbled. Wisconsin voters added the ban in 2006 by constitutional amendment. However, as Judge Posner pointed out, LGBT persons are a small fraction of the state’s population and “[m]inorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law” (*37). The court also dismissed the state’s argument that LGBT persons are “politically powerful out of proportion to their numbers.” People often support laws that go beyond those in their self-interest. “They support laws punishing cruelty to animals, even though not a single animal has a vote” (**37-38).

Lastly, the court gave little attention to the state’s final argument that allowing same-sex marriage makes marriage “fragile and unreliable” in much the same way that no-fault divorce does. As Judge Posner noted, “[T]hough of course Wisconsin has no-fault divorce, and it’s surprising that the state’s assistant attorney general, who argued the state’s appeal, would trash his own state’s law” (*27). Judge Posner also concluded that there was no evidence that showed same-sex marriage would be any less “child-centric” or that no-fault divorce had made marriages any less “child-centric.”

The court explained both the tangible and intangible benefits of marriages, specifically noting that these benefits inure not only to the couple, but to their children. “[T]o exclude a couple from marriage is thus to deny [the couple] a coveted status” (*10) and denying that status harms the couple, but also their children, for many same-sex couples raise children. Accidental pregnancies that are carried to term are the ones most likely to produce children that end up being adopted, and same-sex couples are more likely than opposite-sex couples to adopt children. (See **20-21.) As Judge Posner reasoned, if children benefit when their parents are married, they benefit whether they are natural children of the marriage or adopted into it. Thus, children of same-sex couples would also benefit from their parents being married.

Consider now the emotional comfort that having married parents is likely to provide to children adopted by same-sex couples. Suppose such a child comes home from school one day and reports to his parents that all his classmates have a mom and a dad, while he has two moms (or two dads, as the case may be). Children, being natural conformists, tend to be upset upon discovering that they’re not in step with their peers. If a children’s same-sex parents are married, however, the parents can tell the child truthfully that an adult is permitted to marry a person of the opposite sex, or if the adult prefers as some do a person of his or her own sex, but that either way the parents are married and therefore the child can feel secure in being the child of a married couple. (*22)

In the end, to the extent that the state is concerned about unwanted children (and that is a valid concern), the court found the solution of denying same-sex couples the right to marry not tailored to the problem.

That it was Posner who wrote the opinion is meaningful. The other two judges on the panel were appointed by Democratic presidents: Ann Claire Williams by President Clinton in 1999 and David F. Hamilton by President Obama in 2009. Posner was appointed by Ronald Reagan in 1981, and is primarily considered a conservative. However, an interesting piece in The Washington Blade shows how Judge Posner’s thinking on the constitutionality of same-sex marriage has, in the parlance of the day, evolved. This issue seems certain to head to the United States Supreme Court in the very near future; we’ll see if any of the conservative justices’ thoughts have also evolved.

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