For the fourth time in recent months, a federal appeals court is set to examine whether states retain the authority to restrict marriage to a union of one man and one woman or, instead, are constitutionally required to embrace same-sex marriages.
On Tuesday, a federal appeals court in Chicago will take up challenges to same-sex marriage bans in Wisconsin and Indiana.
Elsewhere in the country, two federal appeals courts have struck down similar bans in Utah, Oklahoma, and Virginia. A third US appeals court in Cincinnati is expected to rule soon on challenges to bans in Michigan, Kentucky, Ohio, and Tennessee.
Now the spotlight shifts to a three-judge panel at the Chicago-based Seventh US Circuit Court of Appeals.
Although the underlying issues are similar from state to state and court to court, the process of having different judges examine the underlying issues is helping to prepare the groundwork for an expected ultimate resolution at the US Supreme Court.
The high court could take up one or more same-sex marriage cases, perhaps as early as next year.
In the meantime, more than 80 lawsuits challenging same-sex marriage restrictions in all 31 states with bans are continuing to work their way through the courts. Nineteen states, along with the District of Columbia, have legalized same-sex marriage.
In June a federal judge in Indiana invalidated that state’s marriage laws, ruling that American couples enjoy a fundamental right to marry without regard to sexual orientation. The judge also ruled that Indiana’s restrictive marriage provisions violated the constitutional principle of equal treatment with 614 state statutes that provide benefits to opposite-sex married couples that are not available to same-sex partners.
Also in June, a federal judge in Wisconsin struck down that state’s ban on same-sex marriages. The judge ruled that a 2006 state constitutional amendment limiting marriage to one man and one woman violated a fundamental right to marry under the US Constitution. The judge also ruled that the Wisconsin provisions violated the right of same-sex couples to equal protection of the laws by treating them differently than heterosexual married couples.
In a legal brief filed with the Seventh Circuit, Wisconsin Assistant Attorney General Timothy Samuelson argues that the federal judge effectively rewrote the state’s marriage laws while establishing a new right recognizing same-sex marriages.
He said the judge usurped an area of authority under the Constitution reserved to the states and their democratic political processes.
“Defining and regulating civil marriage is a task best left to the Legislature, not the courts,” Mr. Samuelson wrote.
He said, contrary to the decision of the federal judge who invalidated Wisconsin’s marriage restrictions, the US Constitution does not impose a positive requirement on government to license or endorse private decisions made by individuals concerning marriage.
“The Supreme Court’s marriage cases establish that there are certain spheres of personal, domestic privacy into which the government may not interfere. It is the right to be left alone that has been recognized by the Supreme Court, not the entitlement to tangible and intangible government benefits,” he said.
“This is not a case where Wisconsin has taken away a person’s right to get married, taken away a person’s right to receive benefits incident to marriage,” he said.
“This is, instead, a case where persons who have never had the legal right to marry each other in Wisconsin claim that traditional marriage laws unconstitutionally exclude them,” he wrote.
Lawyers for same-sex couples challenging the Wisconsin restrictions said in their own brief that it is state officials, not the gay and lesbian plaintiffs, who are attempting to redefine the fundamental right to marry as merely a fundamental right of different-sex couples to marry.
“The fundamental right to marry has never been defined by the partner chosen. It has been defined by the right to make the choice,” John Knight and James Esseks of the American Civil Liberties Union Foundation wrote in their brief to the appeals court.
“While states have a legitimate interest in regulating and promoting marriage, the fundamental right to choose one’s spouse belongs to the individual,” they added.
Indiana Solicitor General Thomas Fisher said in his brief that plaintiffs challenging traditional marriage laws don’t view marriage as an institution related to a government interest.
Instead, he said, they are demanding a “self-defined entitlement to government approval of any relationship whatever.” Such an established constitutional right would leave states powerless to enforce statutes against polygamy, he said.
Mr. Fisher wrote that Indiana laws limiting marital benefits to man-woman marriages are justified by the state’s interest in preventing ad hoc procreation among unrelated men and women who may feel no obligation to care for and raise their own children. The marriage laws are designed to channel such couples toward raising their own children as part of an intact family, he said.
The solicitor general said Indiana’s objective is to “encourage childbearing by both biological parents in tandem, a circumstance that can arise only with opposite-sex couples, not same-sex couples.”
Lawyers for same-sex couples argue that Indiana’s rationale is inconsistent. For example, Indiana allows first cousins to marry, but only if both are at least 65 years of age or older and thus beyond the ability to procreate.
Indiana law does not bar unmarried couples from having children. And it does not bar infertile opposite-sex couples from marrying. So what is the justification to exclude same-sex couples, they ask
They add that excluding same-sex couples from marriage does nothing to promote procreation among heterosexual married couples.
The lawyers also reject the state’s argument that the case raised important issues of state sovereignty and federalism.
“The state attempts a sleight-of-hand by recasting this appeal as a federalism battle over the state’s right to regulate marriage, rather than the battle that it is – to protect the constitutional rights of its resident citizens,” the brief said.
No one contests Indiana’s power to regulate marriage, the lawyers wrote. The issue before the court is whether the regulations violate a US constitutional guarantee of the freedom to marry a person of one’s choice, without regard to the gender of the partners, they said.
The cases are Baskin v. Bogin (14-2386) and Wolf v. Walker (14-2526).