Court: Wisconsin, Indiana same-sex marriage bans violate Constitution

CHICAGO - A U.S. appeals court ruled Thursday that same-sex marriage bans in Wisconsin and Indiana violate the U.S. Constitution, in another in a series of courtroom wins for gay-marriage advocates.

The unanimous decision by the three-judge panel of the U.S. 7th Circuit Court of Appeals in Chicago bumps the number of states where gay marriage will be legal from 19 to 21. Since last year, the vast majority of federal rulings have declared same-sex marriages bans unconstitutional.

Thursday's 40-page ruling sharply criticized the reasons both states gave for the bans, saying, "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 Wisconsin and Indiana cases shifted to Chicago after attorneys general in the states appealed separate lower court rulings in June that tossed the bans. The 7th Circuit stayed those rulings pending its own decision on the cases, which were considered simultaneously.

Between the bans being struck down and the order reinstating them as the appeals process ran its course, hundreds of gay couple in both states rushed to marry. Those marriages could have been jeopardized had the 7th Circuit restored the bans.

The 7th Circuit's decision came just nine days after oral arguments, an unusually quick decision for the court.

During those arguments, Republican appointee Judge Richard Posner likened same-sex marriage bans to now-defunct laws that once outlawed interracial marriage. They derived from "hate" and "savage discrimination" of gays, he said.

The states argued that the prohibitions helped foster a centuries-old tradition of marriage between men and women, and that the regulation of the institution of marriage was a tool for society to attempt to prevent pregnancies out of wedlock.

In their ruling, the court said "homosexuals are among the most stigmatized misunderstood, and discriminated-against minorities in the history of the world."

"Not that allowing same-sex marriage will change in the short run the negative views that many Americans hold of same-sex marriage," the ruling continued. "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."

A constitutional amendment approved in 2006 by voters banned gay marriage in Wisconsin, while state law prohibited it in Indiana. Neither state recognized same-sex marriages performed in others states.

In court filings, attorneys representing Wisconsin and Indiana argued that nothing in the U.S. Constitution prevented them from implementing and enforcing the bans. Gay-marriage advocates said they violated equal protection guarantees.

In addition to Posner - whom Ronald Reagan appointed in 1981 - the judges on the 7th Circuit panel included 2009 Barack Obama appointee David Hamilton and Ann Claire Williams, a 1999 Bill Clinton appointee.

The states could ask for a re-hearing at the appeals court or could appeal to the U.S. Supreme Court, but there's no guarantee the high court would agree to take up their cases.

Scott McDonnell, the Dane County Clerk in Madison, Wisconsin, who had married gay couples after that state's law was initially struck down by a federal judge, said Thursday that because of the uncertainty, he would not resume marrying same-sex couples.

"We're in a little bit of a holding pattern for a couple weeks," McDonnell said.