<i>BREAKING NEWS</i>Seventh Circuit Strikes Down Same-Sex Marriage Bans in Wisconsin and Indiana

A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, acting just nine days after arguments, held unanimously on Sept. 4 that same-sex marriage bans in Wisconsin and Indiana are unconstitutional.

The panel's'decision, written by Judge Richard Posner, followed similar decisions by the Tenth and Fourth circuits invalidating state bans in Virginia, Oklahoma and Utah.

“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,” wrote Posner, who was joined by judges Ann Claire Williams and David Hamilton.

The three judges voiced strong skepticism of the states' arguments in defense of their bans during oral arguments on Aug. 26. In his opinion, Posner rejected all of their arguments and raised the bar for any possible success by requiring the states to provide more than a “reasonable” basis for those bans because homosexuality is a “suspect” classification.

“These circumstances create a presumption that the discrimination is a denial of the equal protection of the laws (it may violate other provisions of the Constitution as well, but we won't have to consider that possibility),” he wrote. “The presumption is rebuttable, if at all, only by a compelling showing that the benefits of the discrimination to society as a whole clearly outweigh the harms to its victims.”

The states, the panel concluded, could not make that compelling showing.

The U.S. Supreme Court has three same-sex marriage petitions pending for review from Virginia, Oklahoma and Utah.

Marcia Coyle writes for The National Law Journal, an ALM sibling publication of The Matrimonial Strategist. She can be reached at [email protected].

A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, acting just nine days after arguments, held unanimously on Sept. 4 that same-sex marriage bans in Wisconsin and Indiana are unconstitutional.

The panel's'decision, written by Judge Richard Posner, followed similar decisions by the Tenth and Fourth circuits invalidating state bans in Virginia, Oklahoma and Utah.

“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,” wrote Posner, who was joined by judges Ann Claire Williams and David Hamilton.

The three judges voiced strong skepticism of the states' arguments in defense of their bans during oral arguments on Aug. 26. In his opinion, Posner rejected all of their arguments and raised the bar for any possible success by requiring the states to provide more than a “reasonable” basis for those bans because homosexuality is a “suspect” classification.

“These circumstances create a presumption that the discrimination is a denial of the equal protection of the laws (it may violate other provisions of the Constitution as well, but we won't have to consider that possibility),” he wrote. “The presumption is rebuttable, if at all, only by a compelling showing that the benefits of the discrimination to society as a whole clearly outweigh the harms to its victims.”

The states, the panel concluded, could not make that compelling showing.

The U.S. Supreme Court has three same-sex marriage petitions pending for review from Virginia, Oklahoma and Utah.

Marcia Coyle writes for The National Law Journal, an ALM sibling publication of The Matrimonial Strategist. She can be reached at [email protected].