Yet another federal court ruled against Wisconsin’s constitutional ban on same-sex marriage Wednesday, bringing the case one step closer to the U.S. Supreme Court.
Federal Appeals Court Judge Richard Posner, appointed by President Ronald Reagan, wrote the decision in the case, which had been combined with a case against a similar law in Indiana and reviewed by Posner and two other judges.
“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,” Posner wrote.
In June U.S. District Judge Barbara Crabb struck down the state’s 2006 constitutional amendment and, after a flurry of same-sex marriages around the state, issued a stay on her decision several days later, halting further marriages until the case was settled.
Dane County Clerk Scott McDonell said he was prepared to begin issuing same-sex marriage licenses again as soon as county attorneys said it was legal, but Assistant Corporation Counsel David Gault, one such lawyer, said it would be a long time before that happens.
“We just have to wait and see what happens as far as when that decision will go into effect,” Gault said. “Then it will depend in large part on what the state decides to do.”
Wednesday’s decision will only go into effect if state attorneys decide not to appeal the decision, but state Attorney General J.B. Van Hollen said in a statement he would file an appeal in the next two weeks.
University of Wisconsin-Madison Political Science Professor David Canon said Posner’s decision was historic because Posner, typically a conservative judge, wrote an extremely strong decision that could have implications in an eventual case before the U.S. Supreme Court.
In the decision, Posner individually addresses each point argued by Wisconsin and Indiana’s state attorneys, completely, and at times sarcastically, dismissing each.
“Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry,” Posner wrote, referring to Indiana’s argument that same-sex marriage is detrimental to straight family life. “Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”
Canon said the U.S. Supreme Court will almost certainly take up the issue of same-sex marriage in its next term, and added Wednesday’s decision made Wisconsin’s case a good contender to be taken up by the High Court.
Posner’s decision, Canon said, could foreshadow a Supreme Court majority opinion written by Justice Anthony Kennedy, another Reagan appointee.
Every same-sex marriage ban in the United States has been challenged in a court of law and no federal appeals court in the country has ever upheld a ban on same-sex marriage. Given the likelihood the case will be appealed, the issue’s legal uncertainty can only be alleviated by Supreme Court action.
