On Thursday, September 4, a three-judge panel of the 7th Circuit Court of Appeals unanimously upheld lower court decisions that that declared the bans on same-sex marriage declared by Indiana and Wisconsin are both unconstitutional.
The decision came down just a week after hearing oral arguments, which can be taken as an indication of how clear the judges thought the legal and constitutional issues are.
Writing for the court, Judge Richard Posner called the states' arguments against same-sex marriage "totally implausible" and that the argument that same-sex couples should not be allowed to marry because they can't conceive children "is so full of holes that it cannot be taken seriously." Later in his ruling, he sarcastically observed that
Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.Then, just four days later, the 9th Circuit Court of Appeals held oral arguments on same-sex marriage bans in Idaho, Nevada, and Hawaii - and the members of the three-judge panel made no secret of their disdain for the arguments for bigotry.
Attempting to defend the bans in Idaho and Nevada, Monte Stewart of the Coalition for the Protection of Marriage argued that male-female marriages presents a message that, quoting one news report,
strengthens a child’s “bonding right” with his or her biological parents. Widening that institution to include same-sex couples, he continued, “weakens the social expectation of the child’s bonding right,” and sends the “social message that fathers are not a valuable part of child rearing.”That didn't go over well.
Judge Marsha Berzon responded that Stewart was sending a message that families headed by same-sex couples were "second-rate" and "less desirable."
Judge Ronald M. Gould questioned where the very term “bonding right” came from. Stewart seemed to have invented it.
Something I noticed but the judges apparently did not address was Stewart's reference to this "bonding right" a child's biological parents. But if that is so important, shouldn't Idaho and Nevada be banning adoption? Shouldn't giving a child up for adoption - the very thing these same sorts of people are constantly proposing as an alternative to abortion - be illegal on the grounds that it denies the child its "bonding rights" with its biological parents?
While they didn't note that, Judge Stephen Reinhardt did ask why in the case of this "bonding right" Idaho does not ban divorce. Stewart's only answer was the thoroughly lame "They may."
Reinhardt, who wrote the 2012 ruling overturning California's infamous Proposition 8, also observed that people who are attracted to their own gender “also have the right to live their lives as human beings.”
Which is pretty much all that the advocates for marriage justice are looking for.
The 7th Circuit was the third federal appeals court to strike down bans on same-sex marriage as unconstitutional; by all appearances, the 9th circuit will make four.
Overall, more than 30 state and federal courts have ruled in favor of marriage equality since the Supreme Court down a central part of the Defense of Marriage Act last year. Same-sex marriage is now recognized in 19 states and in Washington, D.C.
The Supreme Court is widely expected to weigh in on the matter during its upcoming term, which runs from October to next June.
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