MICHAEL TARM Associated Press
CHICAGO — A U.S. appeals court ruled Thursday that gay marriage bans in Wisconsin and Indiana violate the U.S. Constitution, but same-sex weddings will remain on hold in Dane County as the ruling is appealed.
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 to 21, plus the District of Columbia. 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.”
Wisconsin Attorney General J.B Van Hollen said he would appeal the ruling.
“Attorney General Van Hollen has always believed that this case will ultimately be decided by the United States Supreme Court,” spokeswoman Dana Brueck said, adding that Van Hollen’s position is that a stay issued earlier “remains in effect until all appeals have been concluded.”
Plaintiffs celebrated the victory Thursday.
“Every loving and committed couple in the U.S. should have the freedom to marry, protect their loved ones, and have their commitment honored by our legal system,” Larry Dupuis, legal director of the ACLU of Wisconsin, said in a statement.
Judi Trampf and Katy Heyning of Madison were among the plaintiffs. Trampf, 54, whose birthday was Thursday, was overjoyed.
“It’s the best birthday present since I got a purple bike in second grade,” said Trampf, who has been with Heyning for 25 years and is looking forward to finally getting married.
But she said the couple likely will wait until Van Hollen’s appeal is decided before tying the knot.
“We’re just celebrating the decision and we’re going to be trying to figure out what to do about marriage later,” she said. “We’re hoping that he (Van Hollen) files it as soon as possible so we won’t have to wait.”
The judges of the 7th Circuit really understand the struggle, said Keith Borden, 41, another of the plaintiffs.
He said that to have such a clear decision “speaks volumes about how far we’ve come and how far it can go in the future.”
Borden, who married his husband, Johannes Wallmann, in Canada in 2007, in a union that is not recognized in Wisconsin, said he is encouraged by the momentum that is building in favor of marriage equality. “I say let’s take it to the Supreme Court.”
The Wisconsin and Indiana cases shifted to Chicago after attorneys general in those 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.
Republican appointee Judge Richard Posner wrote Thursday’s opinion for the panel. During oral arguments last month, he had 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. The decision criticized the justifications both states gave for the bans, several times singling out the argument that marriage between a man and a woman is tradition. There are, the court noted, good and bad traditions.
“Bad traditions that are historical realities such as cannibalism, foot-binding, and suttee, and traditions that from a public-policy standpoint are neither good nor bad — such as trick-or-treating on Halloween,” it said. “Tradition per se therefore cannot be a lawful ground for discrimination — regardless of the age of the tradition.”
The court also said that “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.
Though Wisconsin says it will appeal, there’s no guarantee that the U.S Supreme Court will take up the case.
Dane County Executive Joe Parisi called on Van Hollen and Gov. Scott Walker to “stop wasting state time and resources trying to prevent people who are in love from getting married.” Walker’s office referred questions to Van Hollen.
Parisi said the earliest Dane County government could begin issuing marriage licenses would be several weeks, after final publication of the opinion.
Dane County Clerk Scott McDonell’s office had issued hundreds of marriage licenses after U.S. District Judge Barbara Crabb struck down the ban until the Madison-based judge stayed that decision. He confirmed that his office wouldn’t immediately resume marrying same-sex couples.
“We’re in a little bit of a holding pattern for a couple weeks,” McDonell said.
ACLU spokeswoman Molly Collins said the defendants have 90 days to petition the Supreme Court to take up the case. If it the court doesn’t, same-sex marriages would resume in Wisconsin in 21 days unless the defendants get a stay from the Supreme Court or Court of Appeals.
According to the national group Freedom to Marry, restrictions on same-sex marriage have been struck down by 39 different courts.
“Today’s sharp and scathing ruling demolishes the arguments and unsubstantiated claims made by opponents of the freedom to marry ... and affirms what nearly 40 other federal and state courts have found: the denial of the freedom to marry inflicts real harms and is constitutionally indefensible,” Evan Wolfson, the group’s president, said in a statement.
— State Journal reporters Dee J. Hall and Samara Kalk Derby contributed to this report.