CHICAGO (Reuters) - A U.S. appeals court in Chicago appeared ready to strike down gay marriage bans in Indiana and Wisconsin after vigorously challenging the two states’ attorneys at a hearing on Tuesday.
The oral arguments before a three-judge panel of the 7th U.S. Circuit Court of Appeals come at a crucial stage in the legal fight over same-sex marriage as the U.S. Supreme Court is expected to take up the issue in its next term.
At the U.S. appeals court level, judges have struck down similar bans on gay marriage in Utah, Oklahoma and Virginia.
The three judges, one appointed by a Republican U.S. administration and two by Democratic administrations, were considering challenges brought by civil rights groups on behalf of couples seeking to marry against gay marriage bans in the two Midwest states.
Judge Richard Posner, the panel’s lone Republican appointee but known for deviating from the conservative line, over and over again asked the lawyers for Wisconsin and Indiana to demonstrate that gay marriage would cause harm to society.
“Answer the question. What is the harm? Does it hurt the children?” Posner asked, adding that he had read briefs containing empirical evidence that adopted children of homosexuals suffer if their parents cannot marry like heterosexual parents can.
Posner also criticized the state’s argument that tradition was important in defining marriage.
“They made the same arguments of tradition for banning interracial marriage,” he said. “We’ve been doing stupid things for 100 years or 1,000 years, so we’ll continue doing them?”
The other two judges on the panel, Democratic appointees Ann Clair Williams and David F. Hamilton, also asked questions about discrimination and equal rights.
More than 30 courts have ruled in favor of gay marriage since a U.S. Supreme Court ruling in June 2013 struck down a key part of the 1996 federal Defense of Marriage Act under which states could refuse to recognize same-sex marriages from other states.
Decisions from the Chicago-based court, and from the Cincinnati-based 6th U.S. Circuit Court of Appeals, which heard similar cases earlier this month, could take weeks or months.
Judges often play devil’s advocate during oral arguments and home in on the parties’ weakest points, so their eventual ruling on the case could be different from the apparent stance taken in the courtroom.
The court in downtown Chicago was packed with more than 200 people, including gay rights activists and plaintiffs who bussed in together from Indiana and Wisconsin to hear the arguments.
Gay marriage is legal in 19 of the 50 states and in Washington, D.C.
In the cases argued on Tuesday, lower court judges have already ruled in favor of the plaintiffs, who sued to have the gay marriage bans revoked. Wisconsin and Indiana appealed those decisions to the federal court.
The Chicago-based court is the fourth federal appeals court to take up gay marriage since the Supreme Court ruling in United States v. Windsor in June 2013. That ruling extended spousal benefits available under federal law to same-sex married couples.