A three-judge panel of the 7th Circuit Court of Appeals last week unanimously struck down state bans on same-sex marriage in Indiana and Wisconsin. In a 40-page opinion (http://www.scribd.com/doc/238675754/14-2386-212#download), Judge Richard Posner blasted the two states for arguing that the reason why gay marriages were prohibited while heterosexual marriages were encouraged was that heterosexuals needed marriage to make couples take responsibility for their unplanned children. The states had argued that since homosexual couples could not accidentally conceive children, the state had no interest in them being married.

Posner wrote:

"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, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases."

It is interesting to see this attenuated "unintended child" argument take center stage in this litigation and it highlights the underlying standing issue as it relates to the litigates. After the U.S. Supreme Court ruled in Hollingsworth v. Perry (2013) that the promoters of a ballot initiative that banned same-sex marriage in California did not have Article III standing to defend the initiative when the state refused to do so, the job of litigating in defense was left to the states. Since the states of Indiana and Wisconsin were now charged with defending the bans on appeal, it is not surprising that the attorneys involved might not have been passionate about banning same-sex marriage and may have been content to demonstrate a credible effort even while ultimately not minding if they lost the case.

The U.S. Supreme Court may have kicked the politically-charged can down the road in Perry by denying standing to sue but the Court will likely have to hear another case on the merits as 32 states have filed or joined briefs asking the Court to address the issue, with several states asking the Court to reinstate bans that were overturned by federal courts and others asking the justices to overturn state bans.

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