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7th Circuit Hears Challenges To Same-Sex Marriage Bans in Indiana and Wisconsin: LISTEN

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The 7th Circuit Court of Appeals today heard oral arguments in two cases that challenged the constitutionality of same-sex marriage bans in Indiana and Wisconsin, respectively. As the AP reports, the three judge panel composed of Judges Richard Posner, Anne Claire Williams and David Hamilton, were critical of arguments that sought to justify the bans. Judge Posner, the sole Republican appointed judge among the three member panel, was perhaps the most critical of the states defending their anti-equality laws, objecting in particular to arguments that relied on "tradition":

"It was tradition to not allow blacks and whites to marry — a tradition that got swept away," Posner said. Prohibition of same sex marriage, he said, is "a tradition of hate ... and savage discrimination."

Posner frequently cut off Indiana Solicitor General Thomas Fischer, just moments into his presentation and chided him to answer his questions.

At one point, Posner ran through a list of psychological strains of unmarried same-sex couples, including having to struggle to grasp why their schoolmates' parents were married and theirs weren't.

"What horrible stuff," Posner said. What benefits to society in barring gay marriage, he asked, "outweighs that kind of damage to children?"

There was [also] some levity during the hearing. As Samuelson struggled to offer a specific reason for how gay marriage bans benefit society, he suddenly noted a yellow courtroom light signaling his allotted time was up.

"It won't save you," [Judge Ann Claire] Williams told him, prompting laughter in court.

Samuleson smiled, and said: "it was worth a try.”

The last anecdote indicates somewhat dramatically just how much the court may be inclined to disagree with the state’s arguments and find for the plaintiffs. 

Listen to oral arguments in both the Indiana (Baskin v. Zoeller) and Wisconsin case (Wolf v. Walker), AFTER THE JUMP…

(photo via Twitter)

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Seventh Circuit Reveals Three Judge Panel To Hear Today's Gay Marriage Case

Judges

As Ari Ezra Waldman reported earlier, today's hearing on marriage equality before the 7th Circuit Court of Appeals hinges in some part at least on the three judges chosen to hear the arguments. Those judges have now been revealed as Judges Richard Posner, Anne Claire Williams and David Hamilton. As ThinkProgress reports, this news seems to portend well for marriage equality advocates: 

Judge Posner is the sole Republican on the panel — he’s served on the Court since President Reagan appointed him in 1981 — but he is a highly idiosyncratic judge who has grown increasingly critical of his fellow partisans in recent years….On the specific issue of gay rights, Posner’s views are a bit nuanced, but he is openly sympathetic to the case for equality. In a 2013 essay entitled “How Gay Marriage Became Legitimate,” Posner questioned the view that the courts have played much of a role in advancing LGBT equality. Using antiquated language, Posner’s bottom line was that “the growing acceptance of homosexual marriage seems a natural consequence of the sexual revolution that began in the 1960s rather than an effect, even to a small degree, of litigation.” Yet he was also dismissive of arguments against gay equality. “[I]t is hard to make a case for discriminating against [gay people],” Posner wrote, “apart from a religious case based largely on Roman Catholic doctrine.”

Judge Williams is a Clinton-appointee and a noted liberal scholar. Hamilton, meanwhile, was appointed by President Obama and was filibustered by Republican Senators “in large part due to a handful of opinions he handed down as a federal district judge on social issues such as abortion and religion.” Early speculation suggests both would be unlikely to break with the dramatic trend of federal justices supporting marriage equality.

Stay tuned for more news on the hearing today before the 7th Circuit.


Marriage Equality Goes Before the 7th Circuit: A Preview

SeventhBY ARI EZRA WALDMAN

Marriage equality gets another hearing before another federal appellate court this morning. Before an as-yet-to-be-named three-judge panel of the Chicago-based Seventh Circuit Court of Appeals, gay and lesbian couples in Indiana and Wisconsin will argue that, as the district courts stated below, the states' bans on gay marriage are unconstitutional. The states' two Republican administrations will argue that gays and lesbians should not be included in the fundamental right to marry and that it is the states' best interest to ban gays from marrying. These arguments are tired, old, and have been rejected many times.

But although the weight of legal arguments and a string of legal victories are on our side, the Seventh Circuit poses an uncertain challenge for several reasons.

First, the panel. We will not know the panel until just a short time before oral argument begins. In previous previews of marriage equality cases before appellate courts, we were able to discuss the political leanings of the judges. We discussed that in the Fourth Circuit and in the Sixth Circuit. And although political affiliation is not always a perfect indication of how a judge will decide a ruling, the knowledge informs us. As a former appellate attorney, I made sure that at least part of my legal strategy reflected the decision histories and tendencies of the judges on the panel. I could never do that in the Seventh Circuit outside of a few on the fly preparations before oral argument.

We do know that 10 of the 14 judges (including senior judges with a lighter case load) on the Seventh Circuit were appointed by Republican presidents. But we also know that (a) many Republican judges have written eloquent marriage equality decisions and (b) some of the Republican-appointed judges on the Seventh Circuit defy traditional conservatism. The famous Judge Richard Posner, for example, is a scion of the law and economics movement and he does not necessarily toe a socially conservative line. For example, Judge Posner has been sympathetic to the pro-choice movement.

WoodWe also know that Judge Diane Wood, a Clinton-appointee and liberal scholar, is now the chief judge, but that does not necessarily matter for panel assignments. The Seventh Circuit's staff executive determines panels using a very simple matrix of 3 judge combinations. Judges learn their panels weeks, if not months in advance; we hear about it the day of.

Second, the arguments. Indiana's central argument is that banning gays from marrying is in the best interest of the state because the state needs to encourage opposite-sex couples to marry and have children within the marital relationship. We've heard that argument before and it is simply laughable. There is no way that banning one group from marrying actually encourages a totally different group to not just marry but also to have kids while married. Plus, gay couples have children, too. I cannot imagine judges like Posner and Frank Easterbook, another law and economics scholar, seeing any legitimacy to the supposed "incentive" for heterosexuals to marry in Indiana's argument.

Third, the history. We won more than 30 cases in a row after the Supreme Court's decision in Windsor. Remarkably, we lost one in Tennessee just two weeks ago, a decision I will write about presently. But the Seventh Circuit is looking at the cases before it in the context of a federal judiciary that, so far, has been overwhelmingly favorable to marriage equality. The judges will see it below them -- in the many district court decisions overturning bans in states across the country -- and above them -- in the Supreme Court's decision in United States v. Windsor. It is hard to see the appellate panel ignoring this context. Neither Judge Posner nor Judge Easterbrook, nor, for that matter, any of the senior judges, are likely to want to be remembered for going against the full weight of an unstoppable tide toward marriage equality in the federal courts.

We will know more once we hear the panels.

***

Follow me on Twitter and on Facebook. Check out my website at www.ariewaldman.com.

Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently pursuing his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.


Marriage Equality Advocates to Rally in Chicago Today on Eve of Seventh Circuit Arguments

ChicagoplazaMidwestern same-sex couples, LGBT supporters, and faith leaders will rally in the Chicago Federal Plaza this afternoon on the eve of marriage cases before the Seventh Circuit Court of Appeals tomorrow. Illinois state Rep. Greg Harris, author of the new Illinois marriage equality law, will kick off the rally and welcome the plaintiffs in the cases which center on marriage bans in Indiana and Wisconsin. The three-judge panel will be announced in the morning. 

For more information on the rally, head HERE.

Last month, the Seventh Circuit ruled that the state of Indiana must recognize the marriage of a terminally ill lesbian. 

[photo via Flickr]


Mennonite Pastor Under Review For Presiding Over Same-Sex Wedding - VIDEO

Assembly Mennonite Church Pastor Karl Shelly

The Mennonite church is set to review the credentials of Pastor Karl Shelly who in May presided over a same-sex wedding in violation of the church’s rules, reports The Michigan City News-Dispatch.

Mennonite church guidelines state that pastors may not perform a same-sex covenant ceremony. Because the church has a strong focus on social justice issues, many members view its non-recognition of same-sex marriage as incompatible with its identity as a whole. 

Shelly wrote in a statement submitted to the Indiana-Michigan Mennonite conference that he performed the service after determining that "being born with a same-sex sexual orientation and entering into a life-long covenant of fidelity and love with another human being is not sin.”

Mennonite Central District Conference minister Lois Johns Kauffmann said that although the body once before reviewed a pastor who performed a same-sex marriage ceremony, the credentials were not revoked.

According to Nancy Kauffman, denominational minister for Mennonite Church USA, a debate on whether the church should allow same-sex covenant ceremonies is likely to arise at the national assembly next year.

Back in June, Eastern Mennonite University in Harrisonburg, Virginia said that it would defer its decision on hiring gay faculty while the Eastern Mennonite University community continued its “discernment of human sexuality."

Watch Pastor Shelly speak about Assembly Mennonite Church's journey to becoming a member of the LGBT-affirming Supportive Communities Network, AFTER THE JUMP...

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Federal Judge Rules Indiana Must Recognize Out Of State Same-Sex Marriages: READ

YoungOn Tuesday, a federal judge ruled that Indiana must recognize same-sex marriages performed out of state, nullifying a provision of the state's ban on same-sex marriage that forbade gay couples wed elsewhere from being recognized as married in the Hoosier state. The AP reports:

U.S. District Judge Richard Young decided Indiana must recognize the marriage of Michelle and Shannon Bowling of Indianapolis, who were married in Polk County, Iowa, on Jan. 18, 2011. Shannon Bowling is employed by the Indiana Department of Correction, and couple sued to seek state benefits for Michelle Bowling and her children from a previous relationship.

Judge Young also issued a ruling in June that struck down Indiana's same-sex marriage ban in broader terms. Though weddings quickly ensued following his decision, the 7th Circuit Court of Appeals intervened and stayed Young's decision. Young's latest decision on same-sex marriages performed out of state is also stayed until the 7th Circuit has a chance to review. 

Read Judge Young's latest order, AFTER THE JUMP...

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