Today, in a 3-0 decision, the 7th District Court of Appeals ruled the Wisconsin and Indiana laws that ban same-sex marriage are unconstitutional.
Here's a link to the actual decision.
And here are my favorite bits:
"The argument that the states press hardest 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 marriage 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."
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"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 seriously. 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 irrational, and therefore
unconstitutional even if the discrimination 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."
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"Although it seems paradoxical to suggest that
homosexuality could have a genetic origin, given that homosexual sex is non-procreative,
homosexuality may, like menopause by reducing procreation by some members of society
free them to provide child-caring assistance to their procreative relatives, thus
increasing the survival and hence procreative prospects of these relatives. This
is called the “kin selection hypothesis” or the “helper in the nest” theory."
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"The
harm to homosexuals (and, as we’ll emphasize, to their adopted children) of
being denied the right to marry is considerable. Marriage confers
respectability on a sexual relationship; to exclude a couple from marriage is thus
to deny it a coveted status. Because homosexuality is not a voluntary condition
and homosexuals are among the most stigmatized, misunderstood,
and discriminated-against minorities in the history of the world, the
disparagement of their sexual orientation, implicit in the denial of marriage
rights to same-sex couples, is a source of continuing pain to the homosexual community.
Not that all same-sex marriage will change in the short run the negative views
that many Americans hold of same-sex marriage. But it will enhance the status
of these marriages in the eyes of other Americans, and in the long run it may convert
some of the opponents of such marriage by demonstrating that homosexual married
couples are in essential respects, notably in the care of their adopted
children, like other married couples."
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"The denial of these federal benefits
to same-sex couples brings to mind the Supreme Court’s opinion
in United States v. Windsor, which
held unconstitutional the denial of all federal marital benefits to same-sex
marriages recognized by state law. The Court’s criticisms of such denial apply
with even greater force to Indiana’s law. The denial “tells those couples, and
all the world, that their otherwise valid marriages are unworthy of federal
recognition.[No same-sex marriages are valid in Indiana.]
This places same-sex couples in an
unstable position of being in a second-tier marriage[in Indiana, in the lowest—the
unmarried—tier]. The differentiation demeans the couple... [and]humiliates tens
of thousands of children now being raised by same-sex couples. The law...makes
it even more difficult for the children to understand the integrity and
closeness of their own family and its concord with
other families in their community
and in their daily lives.”
******************************************************
"Moreover, if channeling procreative
sex into marriage were the only reason that Indiana recognizes marriage, the
state would not allow an infertile person to marry. Indeed it would make marriage
licenses expire when one of the spouses (fertile upon marriage) became infertile
because of age or disease. The state treats married homosexuals as would-be “free
riders” on heterosexual marriage, unreasonably reaping benefits intended by the
state for fertile couples. But infertile couples are free riders too. Why are they
allowed to reap the benefits accorded marriages of fertile couples, and homosexuals
are not?"
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" Indiana has thus invented an insidious
form of discrimination: favoring first cousins, provided they are not of the same
sex, over homosexuals. Elderly first cousins are permitted to marry because
they can’t produce children; homosexuals are forbidden to marry because they
can’t produce children. The state’s argument that a marriage of first cousins who
are past child-bearing age provides a “model [of] family life for younger,
potentially procreative men and women” is impossible to take seriously."
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"Same-sex marriage is analogous in
its effects to no-fault divorce, which, the state argues, makes marriage
fragile and unreliable--though 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."
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"The state elaborates its argument
from the wonder of tradition by asserting, again in its opening brief, that
“thousands of years of collective experience has [sic] established traditional
marriage, between one man and one woman, as optimal for the family, society,
and civilization.” No evidence in support of the claim of optimality is
offered, and there is no acknowledgment that a number of countries permit polygamy."
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"There is no suggestion that the
state has any interest in gathering information, for notice the assumption in
the quoted passage that the state already knows that allowing same-sex marriage
would transform a “cornerstone of civilization and society,” namely monogamous
heterosexual marriage. One would expect the state to have provided some evidence,
some reason to believe, however speculative and tenuous, that allowing same-sex
marriage will or may “transform” marriage. At the oral argument the state’s
lawyer conceded that he had no knowledge of any study underway to determine the
possible effects on heterosexual marriage in Wisconsin of allowing same-sex
marriage."
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"We know that many people want to enter
into a same-sex marriage(there are millions of homosexual Americans, though of
course not all of them want to marry), and that forbidding them to do so
imposes a heavy cost, financial and emotional, on them and their children. What
Wisconsin has not told us is whether heterosexuals have been harmed by same-sex
marriage. Obviously many people are distressed by the idea or reality of such marriage;
otherwise these two cases wouldn’t be here. But there is a difference, famously emphasized by John Stuart Mill in On Liberty(1869),between
the distress that is caused by an assault, or a theft of property, or an
invasion of privacy, or for that matter discrimination, and the distress that
is caused by behavior that disgusts some people but does no (other)harm to them."
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"Wisconsin’s remaining argument is
that the ban on same-sex marriage is the outcome of a democratic process—the enactment
of a constitutional ban by popular vote. But homosexuals are only a small part
of the state’s population—2.8 percent, we said, grouping transgendered and
bisexual persons with homosexuals. Minorities trampled on by the democratic
process have recourse to the courts; the recourse is called constitutional law."
