Appeal Judge Sees Tradition of Racism in Gay-Marriage Ban

Wisconsin’s same-sex marriage ban follows in the tradition of discrimination against blacks and is based on hate, said the only Republican appointee on a three-member appellate panel in Chicago considering the issue.

U.S. Circuit Judge Richard A. Posner, a 1981 appointee of Republican President Ronald Reagan, drew up the comparisons in questioning Indiana and Wisconsin lawyers, who are seeking to resurrect the prohibition on same-sex marriage in their states after lower courts ruled them unconstitutional.

Those states are two of 11 where decisions invalidating such laws were put on hold as appeals wend their way through higher courts. Lawyers defending the now-invalidated bans in Utah, Oklahoma and Virginia have already asked the U.S. Supreme Court to review their cases.

Wisconsin Assistant Attorney General Timothy Samuelson drew fire when he said his state’s prohibition was based on tradition and experience.

“Based on hate, isn’t it?” Posner asked. He also noted it used to be “tradition of not allowing black and white, or other interracial couples, from marrying.”

Posner is considering the appeal from the two states with Ann Claire Williams, a 1999 nominee of Democratic President Bill Clinton, and David F. Hamilton, a 2009 appointee of Democratic President Barack Obama. The judges didn’t immediately rule on the appeal.

Ceremonial Courtroom

Yesterday’s 90 minutes of arguments were heard in a ceremonial courtroom before at least 200 people. It’s the fourth time this year a regional federal appeals court has taken up the issue of same-sex marriage.

Since the Supreme Court’s 5-4 decision last year to invalidate a U.S. law limiting federal recognition to marriages of one man and one woman, bans on same-sex unions have been struck down in 14 U.S. states.

Samuelson denied his state’s same-sex marriage ban was motivated by hate, telling the court that Wisconsin was the first state in the U.S. to bar discrimination based on sexual orientation in the workplace or in housing.

There’s “a history of rather savage discrimination against homosexuals, in the United States and the rest of the world,” Posner said.

‘Don’t Know’

Asked then what harm would come from allowing gay marriage, Wisconsin’s lawyer said, “at this point, we don’t know.”

Posner also repeatedly returned to the subject of the children raised by gay couples, asking Indiana Solicitor General Thomas Fisher whether they wouldn’t benefit from those couples being afforded the same legal rights as their heterosexual counterparts.

“Doesn’t that make those kids better off?” the judge asked.

“Undoubtedly,” Fisher replied.

The judges were more patient with lawyers for the suing couples, questioning Camilla Taylor of the gay-rights advocacy group Lambda Legal, about Indiana’s assertion that her clients sought rights without limits, potentially leading to polygamy.

“Nothing has to change about marriage except the elimination of the gender barrier,” she said.

Prompted by Hamilton to address the specter of a marriage comprised of more than two people, Taylor said, “that case would have to rise and fall on its own merits.”

Slippery Slope

“There is no slippery slope,” said Taylor’s co-counsel, Kenneth Falk of the American Civil Liberties Union. “It’s two people. We know that.”

A Denver-based appeals court panel earlier this year upheld decisions to strike down the Utah and Oklahoma bans by 2-1 margins. The U.S. appeals court in Richmond, Virginia, affirmed a trial judge’s ruling invalidating Virginia’s ban, also 2-1.

An appellate panel in Cincinnati heard argument on marriage cases from Kentucky and Michigan on Aug. 6. together with out-of-state gay marriage recognition rulings from Kentucky, Tennessee and Ohio. That panel hasn’t yet ruled.

The Wisconsin case is Wolf v. Walker, 14-2526, U.S. Court of Appeals for the Seventh Circuit (Chicago). The Indiana cases are Baskin v. Zoeller, 14-2386, Fujii v. Commissioner of the Indiana State Department of Revenue, 14-2387 and Lee v. Abbott, 14-2388, U.S. Court of Appeals for the Seventh Circuit (Chicago).

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