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As important as the federal appeals court ruling was on Thursday declaring same-sex marriage bans in two states to be unconstitutional, the clarity and blunt reasoning behind the decision was equally momentous.
Writing for a unanimous three-judge panel of the United States Court of Appeals for the Seventh Circuit, Judge Richard Posner put the case for equality starkly. “Homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities,” he wrote. Denying them the freedom to marry imposes “continuing pain,” he said, and claims that allowing same-sex marriage would harm heterosexual unions or children, or other state interests, were “totally implausible.”
“Our pair of cases is rich in detail but ultimately straightforward to decide,” Judge Posner wrote in the decision striking down bans in Wisconsin and Indiana.
“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.”
Thursday’s ruling made the Seventh Circuit the third federal appellate court to conclude that state marriage bans violate the Constitution’s promise of equal protection since the Supreme Court’s 2013 ruling invalidating core provisions of the discriminatory federal Defense of Marriage Act. This latest victory for marriage equality was foreshadowed by some blistering questions and comments during last week’s hearing in the case.
It was all the more welcome coming just a day after a federal district judge in Louisiana ruled in exactly the opposite direction — upholding that state’s same-sex marriage ban. The judge’s reasons were as flimsy as the arguments rejected by the Seventh Circuit panel.
The Louisiana ruling was an outlier, coming after a remarkable winning streak for marriage equality in more than 20 federal decisions and does not erase the near-consensus so far in federal courts. But it is a reminder that this fight is not over, and of the need for a nationwide ruling by the Supreme Court recognizing the fundamental right of same-sex couples to marry. The Supreme Court’s ruling in the 2013 U.S. v. Windsor case was based on a conclusion that the federal law against granting benefits to lawfully married same-sex couples violated equal protection and due process guarantees, but did not declare marriage equality a constitutional right across the nation.
Petitions for Supreme Court review of pro-marriage-equality rulings from the Fourth and Tenth Circuits have been filed and are supported by both sides of the issue. There is no reason at this point for the justices to prolong the harm to same-sex couples and their families by waiting for all the remaining state battles to play out.