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Federal Appeals Judges Skeptical Of Same Sex Marriage Ban

7th Circuit hears appeal from Indiana, Wisconsin

Ken Falk with the ACLU of Indiana ( photo: Ray Steele)

A three-judge federal appeals panel appeared to be skeptical of a ban of same sex marriage in Indiana, saying the state's laws on marriage and adoption seemed to conflict.

Tom Fisher, Indiana's Solicitor General, was 8.22 seconds into the first point of his oral argument before the 7th Circuit Court of Appeals panel when he was interrupted by presiding Judge Richard Posner, a nominee of President Reagan.  Rather than focus on whether states had the right to make their own laws on marriage, Posner asked a question that soon became a recurring theme - why does Indiana allow same sex couples to adopt children but not to marry? Posner repeated the question time and again, and he also openly wondered whether children adopted by same sex couples would benefit if their parents were married. "If you allow same sex marriage, you're going to have more adopters, right?  It's much cheaper to adopt a child if you're married, because you get all these benefits from the state and federal government," Posner said.

"You are talking about prioritizing competing issues," Fisher shot back.  "The Legislature has an understanding of marriage that it has decided to preserve."  To which Posner replied, "but it's arbitrary. You allow sterile people to get married.  Why are you doing that if the purpose of marriage is procreation?"  

The procreation argument, specifically the regulation of it, was part of Fisher's contention as to why marriage should be limited to heterosexual couples, though it did not appear to be part of his planned defense of the state law.  Nor did it seem that Fisher planned to argue that allowing same-sex couples to marry might lead someone to push for legalized polygamy, though that came up as well.  "If we're going to link marriage rights to parental rights, that does not limit it to two people.  We have situations in Indiana where more than two people are recognized as parents."  Ken Falk with the ACLU of Indiana, arguing for the rights of same-sex couples, said there was legal precedent from the Supreme Court against polygamy.  The Supreme Court said in (Griswold v. Connecticut, 1965) said marriage is 'bilateral loyalty'. In (Eisenstadt v. Baird, 1972) (the court said) it's an association of two people.  It's two people," Falk said.  "There is no slippery slope."

The appeals panel heard appeals from Indiana and Wisconsin, who want the court to overturn rulings from lower courts striking down same sex marriage bans in each state. The courtroom was packed with more than 150 supporters of same sex marriage, while the only defenders of the marriage ban present were the attorneys for the respective states.

Several plaintiffs were among those attending, including the only legal same-sex couple in Indiana.  Niki Quasney and Amy Sandler of Munster sued to have their out-of-state marriage recognized because Quasney has terminal cancer, which means Sandler could miss out on state benefits when Quasney dies.  U.S. District Judge Richard Young ordered Indiana to recognize their marriage as legal, and the 7th Circuit said the state has to continue to affirm the message during the appeal.

There is no word on when the 7th Circuit court will rule.


Listen to Tuesday's hearing before the 7th Circuit Court of Appeals below:

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