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Federal appeals court judges bristle at ‘traditional’ marriage argument

Tuesday, August 26, 2014
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ACLU attorney Ken Faulk, center, talks to reporters surrounded by plaintiffs and supporters of gay marriage, after Faulk participated in a hearing before the 7th U.S. Circuit Court of Appeals on the challenges to Indiana and Wisconsin's gay marriage ban Tuesday, Aug. 26, 2014, in Chicago. Charles Rex Arbogast, AP

ACLU attorney Ken Faulk, center, talks to reporters surrounded by plaintiffs and supporters of gay marriage, after Faulk participated in a hearing before the 7th U.S. Circuit Court of Appeals on the challenges to Indiana and Wisconsin’s gay marriage ban Tuesday, Aug. 26, 2014, in Chicago.

CHICAGO — Federal appeals judges bristled Tuesday at arguments defending gay marriage bans in Indiana and Wisconsin, with one Republican appointee comparing them to now-defunct laws that once outlawed weddings between blacks and whites.

As the legal skirmish over same-sex marriage shifted to the three-judge panel of the 7th U.S. Circuit Court of Appeals in Chicago, more than 200 people lined up hoping to get a spot in the hearing room.

Attorneys general in both states are trying to reinstate bans that were ruled unconstitutional in June. The outcome of the case also could directly affect hundreds of couples who were married after federal judges overturned the bans but before their rulings were put on hold pending appeal.

Listen to audio of Tuesday’s hearings

Indiana:

Wisconsin:

Same-sex marriage is currently legal in 19 states as well as the District of Columbia, and momentum is building for more states to recognize it. Advocates have won more than 20 court victories around the country since the U.S. Supreme Court struck down a portion of the Defense of Marriage Act that prohibited the federal government from recognizing same-sex marriage in 2013.

Judge Richard Posner, who was appointed by President Ronald Reagan, was dismissive when Wisconsin Assistant Attorney General Timothy Samuelson repeatedly pointed to ‘tradition’ as the underlying justification for barring gay marriage.

“It was tradition to not allow blacks and whites to marry – a tradition that got swept away,” Posner said. Prohibition of same sex marriage, he said, is “a tradition of hate … and savage discrimination.”

Posner frequently cut off Indiana Solicitor General Thomas Fisher, just moments into his presentation and chided him to answer his questions.

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At one point, Posner ran through a list of psychological strains of unmarried same-sex couples, including having to struggle to grasp why their schoolmates’ parents were married and theirs weren’t.

“What horrible stuff,” Posner said. What benefits to society in barring gay marriage, he asked, “outweighs that kind of damage to children?”

The answer has to do with “procreation,” Fisher answered.

“All this is a reflection of biology,” Fisher said. “Men and women make babies, same-sex couples do not… we have to have a mechanism to regulate that, and marriage is that mechanism.”

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