Appeals Court Strikes Down Gay Marriage Ban In Wisconsin and Indiana

On Thursday Judge Richard Posner, a Reagan appointee, wrote the decision after the The U.S. 7th Circuit Court of Appeals in Chicago  stuck down the bans against same sex marriage in Wisconsin and Indiana.There were a number of arguments in his decision which were interesting to read, and which might have an impact when this issue inevitably reaches the Supreme Court. The Dish collected some selections. First, via Slog:

Our pair of cases is rich in detail but ultimately straight-forward to decide. 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. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny…

The harm to homosexuals (and, as we’ll emphasize, to their adopted children) of being denied the right to marry is considerable. Marriage confers respectability on a sexual relationship; to exclude a couple from marriage is thus to deny it a coveted status. Because homosexuality is not a voluntary condition and homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world, the disparagement of their sexual orientation, implicit in the denial of marriage rights to same-sex couples, is a source of continuing pain to the homosexual community. Not that allowing same-sex marriage will change in the short run the negative views that many Americans hold of same-sex marriage. 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.

Rob Tisinai quoted an argument to debunk the  “responsible procreation argument” which he first explained: “that the purpose of marriage is to encourage responsible procreation, and because only straight couples can accidentally procreate, only straight couples need the bond of marriage to keep them together and set up a home for the kids. Gay couples, who only have kids on purpose, don’t need any such prodding.” From Posner’s decision:

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.

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