Appeals Court: Gay marriage ban unconstitutional

Ruling stayed pending Supreme Court review

INDIANAPOLIS - A federal appeals court upheld a lower court ruling on Thursday deeming Indiana's same-sex marriage ban unconstitutional.

Seventh Circuit Court of Appeals Judges Richard Posner, Ann Claire Williams and David F. Hamilton issued their ruling Thursday a little more than a week after hearing oral arguments from both sides. The ruling will also apply to a similar case of out Wisconsin which was combined with Indiana's.

Read the court's full opinion here

In the ruling, the judges said states needed more than "unsupported conjecture" to justify discrimination on the basis of sexual orientation.

"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," the ruling read.

The judges compared current attempts to prevent same-sex marriage to similar attempts in the 1960s to prevent or discourage interracial couples.

So look what the state has done: it has thrown a crumb to same-sex couples, denying them not only many of the rights and many of the benefits of marriage but also of course the name. Imagine if in the 1960s the states that forbade interracial marriage has said to interracial couples: "You can have domestic partnerships that create the identical rights and obligations of marriage, but you can call them only 'civil unions' or 'domestic partnerships.' The term 'marriage' is reserved for same-race unions." This would give interracial couples much more than Wisconsin's domestic partnership statute gives same-sex couples. Yet withholding the term "marriage" would be considered deeply offensive, and, having no justification other than bigotry, would be invalidated as a denial of equal protection.

In the entirety of the 40-page ruling, the judges offered little but criticism for arguments offered by state lawyers.

"As we have been at pains to explain, the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible," the judges said.

The appeals court ruling upholds an earlier decision by U.S. District Judge Richard Young, who said Indiana must recognize out-of-state marriages between same-sex couples.

Shortly after the ruling was released, Hoosiers Unite for Marriage issued a celebratory response.

“We are incredibly grateful that the appellate court ruled swiftly in favor of Indiana couples who are or want to be legally married in our state," the statement said. "We know that this is not likely to be the last step on the road to marriage equality, but today, love wins in Indiana."

Despite the ruling, the Marion County Clerk's Office released a statement saying they will not issue same-sex marriage licenses.

"I am committed to the issue of marriage equality but must respect the court’s decision on this matter," said Clerk Beth White. "After reviewing of the decision as well as listening to statements made by the litigants in this case, it is this office’s understanding the 7th Circuit did not overturn the current stay upholding Indiana’s unconstitutional law on same-sex marriage."

White continued, “If current understanding of the court’s decision changes or if the court provides additional instruction, I will gladly welcome all loving Hoosier couples to the Clerk’s Office for a marriage license.” 

Indiana Attorney General Greg Zoeller said he planned to file a motion to stay the ruling pending an expected U.S. Supreme Court hearing.

“It seems clear that a final resolution of the constitutional issues involving states’ authority over their marriage licenses will need a decision from our nation's highest court," Zoeller said. "Since the Supreme Court has already issued stay orders in two Circuit decisions, it seems appropriate that today's decision also be stayed.  Hopefully, for the interests of everyone on both sides of these cases, the Supreme Court will make a ruling sooner rather than later."

Gov. Mike Pence says he hopes the U.S. Supreme Court will uphold Indiana's right to enact marriage laws when the issue of same-sex unions reaches the high court.

“I’m grateful for the efforts of the Attorney General to defend Indiana's marriage laws before the 7th Circuit Court of Appeals.  I have instructed my General Counsel to carefully review this decision. While I continue to hope that the right of the state of Indiana to enact laws concerning the institution of marriage will be upheld when this matter reaches the Supreme Court of the United States, Hoosiers may be assured, as my administration has done throughout this case, we will continue to uphold the rule of law in all executive branch operations as this matter moves to the highest court in the land."

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