Marriage Equality on Trial

Tamara Packard looks at the oral arguments in Wisconsin’s marriage equality case and offers an analysis on all of the appeals pending in the federal courts

It seems we don’t go a week without another court victory in the fight for marriage equality. We have won marriage cases around the country an unprecedented 38 times since June 2013 (we lost one—in Tennessee state court). And yet despite those victories, marriage equality is still a reality in only 19 states and the District of Columbia. This is because every win has been appealed, and while those appeals are pending, the courts’ rulings have been put on hold, or “stayed.” So we turn our attention to the appellate courts, particularly the federal courts of appeal, for the next word on our freedom to marry. Here is a round-up:

Courts with Active Cases

The 10th Circuit, covering Utah, Wyoming, Colorado, Kansas, Oklahoma and New Mexico, has ruled twice for marriage equality in cases challenging marriage bans in Utah and Oklahoma. The losing parties have asked the United States Supreme Court to hear appeals. The 4th Circuit, covering Virginia, West Virginia, North Carolina, South Carolina, and Maryland, has also ruled for marriage equality in a challenge to Virginia’s ban. The State of Virginia is not appealing, but the state’s registrar of vital records has asked the U.S. Supreme Court to review the decision. Appeals in the 5th Circuit, covering Texas, Louisiana and Missouri, and the 6th Circuit, covering Michigan, Ohio, Kentucky, and Tennessee, have been fully briefed and argued and are awaiting decisions.

Two other Circuits have appeals pending: the 9th and the 7th. In the 9th Circuit, covering the nine westernmost states, is a slow-moving challenge to Nevada’s marriage ban that has been pending since 2012. Arguments will be heard there on September 8. In contrast, two appeals in the 7th Circuit have been expedited, and a decision is expected this fall.

Status of the Wisconsin Appeal

Thus, all eyes are on the 7th Circuit, where the states of Indiana and Wisconsin have appealed pro-equality rulings from the lower courts (including Judge Crabb’s for the Western District of Wisconsin). Arguments were held August 26, and the day began on a hopeful note when the panel of judges was announced: Judges Posner, Williams, and Hamilton. These three judges previously lifted the stay in the Indiana case for two of the plaintiffs, one of whom is terminally ill, compelling Indiana to recognize their marriage.

Judge Posner is thought to be the “conservative” of the three deciding the Indiana and Wisconsin cases. Judge Posner also proved to be the hardest on the lawyers defending the bans. He referred to their arguments as circular and feeble. He described the bans as based on hate, prodding the State’s attorneys to acknowledge a “rather savage history” of governmental discrimination against “homosexuals.” He mocked them, scoffed at them, and berated them for having no evidence or even speculation of a single harm that could come from marriage equality. Judge Hamilton also got some digs in, describing one of Wisconsin’s legal arguments as a “thought experiment” and another as “reverse engineered” in an effort to get around Supreme Court precedent, ignore a great deal of history around marriage, and provide a narrow, artificial rationale for the bans.

Attorneys arguing for marriage equality were also questioned, but rather than signaling skepticism about their ability to win at all, the judges suggested a preference for the equal protection theory over the fundamental right to marry (due process) theory. Judges Posner and Hamilton expressed concern over the fundamental right argument and how to describe that right in a way that does not lead to a right to marry more than one person at a time. Judge Posner frankly stated that in his view, marriage is good for the children of same sex couples, and both he and Judge Hamilton found it problematic that Wisconsin and Indiana wish to protect the children of heterosexual couples by nudging the parents to marry, while leaving the children of same sex couples without the protections that come from marriage. Judge Hamilton seemed keen on viewing the marriage bans as discrimination on the basis of gender, which would draw a heightened level of scrutiny (i.e., make it more likely that they would be struck down). In contrast, Judge Posner expressed distaste for differing levels of scrutiny, while noting there was no rational basis for the bans. And Judge Williams signaled her thinking by remarking to the attorney defending the Wisconsin ban that he seemed unable to point to any rational basis for the ban. She noted that under rational basis review of a law, a State must have a legitimate governmental interest, and “you don’t have any.”

In sum, judging by the arguments, there is little question that the 7th Circuit will affirm the lower court decisions finding the marriage bans unconstitutional. The only questions are on what basis? Will the bans fail under a fundamental right to marry (due process) analysis, equal protection analysis, or both? If stricken based on equal protection, will the court find that there is no rational basis for the bans or will they fail as a form of gender discrimination? Answers to these questions, in the form of a decision, are likely to be announced this fall.

Finally, if, as expected, the 7th Circuit rules for marriage equality, Wisconsin’s next Attorney General and Governor will decide whether to pursue an appeal in the Wisconsin case to the U.S. Supreme Court. So VOTE in the November elections for those who support marriage equality, and be sure everyone you know does too!


Tamara Packard is a Madison civil rights lawyer, activist, and partner in the law firm of Cullen Weston Pines & Bach LLP, cwpb.com.