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Wisconsin, Indiana Same-Sex Marriage Bans Struck Down

Jessica Mason Pieklo

The decision is the third from a federal appeals court to find state level marriage bans unconstitutional, as Judge Richard Posner calls out marriage equality opponents for using "unsupported conjecture" in legal arguments.

A panel of judges from the U.S. Court of Appeals for the Seventh Circuit affirmed two lower court decisions Thursday finding same-sex marriage bans in Wisconsin and Indiana unconstitutional.

Judge Richard Posner, a Reagan appointee, wrote the opinion for the unanimous panel of judges. “The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny,” Posner wrote.

Attorneys for the states of Wisconsin and Indiana defended the same-sex marriage bans by arguing they furthered the state’s legitimate interest in protecting against “accidental births” and child abandonment by encouraging heterosexual couples to marry.

On this point, Posner said that “more than unsupported conjecture that same-sex marriage will harm heterosexual marriage or children or any other valid and important interest of a state is necessary to justify discrimination on the basis of sexual orientation.

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“As we have been at pains to explain, the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible,” he said.

Thursday’s decision by the Seventh Circuit decision means 21 states and the District of Columbia now recognize marriage equality.

The Seventh Circuit ruling is the third federal appeals court to reject statewide bans on same-sex marriage and comes just one day after the a federal judge in Louisiana became the first to rule against marriage equality, upholding the state’s ban on same-sex marriages.

The Supreme Court is expected to take up the issue of whether or not state bans on same-sex marriage are unconstitutional when its session begins this fall. So far three petitions are before the Roberts Court asking it to review decisions striking same-sex marriage bans in Oklahoma, Virginia, and Utah.

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