Appellate Court Appears To Favor Gay Marriage During Arguments

Posted On August 27, 2014

By Mike Perleberg

gay-marriage-same-sex-holding-hands(Chicago, Ill.) – A federal appeals panel is leaning heavily on the side of gay and lesbian couples who want to marry.

Cases from Indiana and Wisconsin were before the U.S. 7th Circuit Court of Appeals in Chicago on Tuesday. Indiana Solicitor General Thomas M. Fisher argued that the June 25 ruling of U.S. District Court Chief Judge Richard L. Young that invalidated Indiana’s marriage statute should be reversed and the injunction lifted.

No ruling was made yesterday and no date has been set for issuing one. No matter which way it comes down, the cases are likely to be appealed again, possibly going as far as the U.S. Supreme Court.

The three judges hearing the oral arguments were Richard Posner, Anne Claire Williams and David F. Hamilton. They took turns leveling often scathing questions towards Fisher regarding the Indiana law banning gay marriage.


In regards to same-sex couples adopting children, Posner – a Ronald Reagan appointee – asked why the state doesn’t want gay couples’ children to have the same advantages as children adopted by heterosexual couples.

“The question is what can we do to nudge heterosexual couples who may produce children, you know, unintentionally to plan for this – to plan for the consequences and appreciate the consequences of sexual behavior. Those consequences don’t arise with same-sex couples. It’s not in the context of adoption that marriage,” Fisher responded, with Posner interrupting.

“But you’re not answering my question,” said Posner. “You’ve got millions of adopted children, and a lot of them – 200,000 or more – are adopted by same-sex couples. Why don’t you want their children to be as well off as the adopted children of heterosexual couples?”

“Of course we do,” stated Fisher. (but) the marriage scheme is not set up with adoption in mind.”

In a statement issued after the hearing, Indiana Attorney General Greg Zoeller said the argument in the appellate court is the one time in the case where the lawyers can speak directly to the judges; and vigorous questioning by judges is how the appellate process is supposed to work.

“Since the larger legal question could end up before the United States Supreme Court, this 7th Circuit hearing is one important step in the process.  As the state government’s lawyers, my office has a duty in this appeal to defend Indiana’s law. While this case stirs strong emotions on all sides, we urge everyone to show civility toward each other and respect for the court,” Zoeller said.

Ken Falk, the legal director for the American Civil Liberties Union of Indiana, was among the attorneys arguing against Indiana’s marriage law. He said Tuesday’s arguments highlighted that there is no reason for the State of Indiana to discriminate against same-sex couples.

“Marriage is about love and commitment and offers rights, responsibilities and protections regardless of whether the couples are same-sex or opposite sex,” Falk said.

Others arguing the case in support of gay marriage included gay rights organization Lambda Legal attorney Camilla Taylor.

The Indiana attorney general said the state’s defense of its law is being funded out of his office’s regular budget approved in advance by the Indiana Legislature. The case is assigned to a salaried attorney who does not charge billable hours and no outside counsel is being used.

When a ruling does come from the 7th Circuit Court of Appeals, Zoeller said his office will notify Indiana’s county clerks with guidance on how or how not to handle marriage licenses for same-sex couples.


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