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Thursday, September 04, 2014

Ind. Decisions - 7th Circuit decides Indiana/Wisconsin same sex marriage appeals

In Baskin v. Bogan (SD Ind., Young) and Wolf v. Walker (Wis.), a 40-page opinion the combined same sex marriage appeals, Judge Posner concludes:

The district court judgments invalidating and enjoining these two states’ prohibitions of same-sex marriage are AFFIRMED.
The oral argument was August 26th, nine days ago.

Here are some quotes from the opinion:

Indiana and Wisconsin are among the shrinking majority of states that do not recognize the va-lidity of same-sex marriages, whether contracted in these states or in states (or foreign countries) where they are law-ful. 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 hard-est 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 mar-riage 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’ll see that the governments of Indiana and Wisconsin have given us no reason to think they have a “reasonable basis” for forbidding same-sex marriage. And more than a rea-sonable basis is required because this is a case in which the challenged discrimination is, in the formula from the Beach case, “along suspect lines.” Discrimination by a state or the federal government against a minority, when based on an immutable characteristic of the members of that minority (most familiarly skin color and gender), and occurring against an historical background of discrimination against the persons who have that characteristic, makes the discrim-inatory law or policy constitutionally suspect. [cites omitted] These circumstances create a presumption that the discrimination is a denial of the equal protection of the laws (it may violate other provisions of the Constitution as well, but we won’t have to consider that possibility). The presumption is rebuttable, if at all, only by a compelling showing that the benefits of the discrimination to society as a whole clearly outweigh the harms to its victims. [cites omitted] * * *

[O]ur main focus will be on the states’ argu-ments, which are based largely on the assertion that banning same-sex marriage is justified by the state’s interest in chan-neling procreative sex into (necessarily heterosexual) mar-riage. 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 psychologi-cal 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 li-cense, and there may be no reason to be particularly suspi-cious of a statute that classifies on that basis.

3. Does the discrimination, even if based on an immuta-ble characteristic, nevertheless confer an important offsetting benefit on society as a whole? Age is an immutable charac-teristic, but a rule prohibiting persons over 70 to pilot airlin-ers might reasonably be thought to confer an essential bene-fit in the form of improved airline safety.

4. Though it does confer an offsetting benefit, is the dis-criminatory policy overinclusive because the benefit it con-fers 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 de-sired 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. * * *

Our pair of cases is rich in detail but ultimately straight-forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the 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 seri-ously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irra-tional, and therefore unconstitutional even if the discrimina-tion is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.

It is also why we can avoid engaging with the plaintiffs’ further argument that the states’ prohibition of same-sex marriage violates a fundamental right protected by the due process clause of the Fourteenth Amendment. * * * In light of the compelling al-ternative grounds that we’ll be exploring for allowing same-sex marriage, we won’t have to engage with the parties’ “fundamental right” debate; we can confine our attention to equal protection. * * *

To return to where we started in this opinion, more than unsupported conjecture that same-sex marriage will harm heterosexual marriage or children or any other valid and important interest of a state is necessary to justify discrimi-nation on the basis of sexual orientation. As we have been at pains to explain, the grounds advanced by Indiana and Wis-consin for their discriminatory policies are not only conjec-tural; they are totally implausible.

Posted by Marcia Oddi on September 4, 2014 03:10 PM
Posted to Ind. (7th Cir.) Decisions