Federal appeals court judges considering whether to uphold same-sex marriage bans in Indiana and Wisconsin reserved their toughest questions for the states, asking how the bans help society, especially children of same-sex couples.
A three-judge panel of the 7th U.S. Circuit Court of Appeals heard oral arguments in the case Tuesday.
In June, a U.S. District Judge ruled that Indiana’s same-sex marriage ban violated the equal protection clause in the 14th Amendment of the U.S. Constitution. The opinion was appealed, but some Indiana same-sex couples were married before a stay was issued.
Judge Richard Posner, the panel’s lone Republican appointee, bristled when a Wisconsin assistant attorney general repeatedly pointed to “tradition.”
Posner said “it was tradition to not allow blacks and whites to marry.” He also asked how children of same-sex couples benefit.
Judge David Hamilton pressed lawyers opposing the bans, asking whether they would argue for polygamy on similar grounds.
American Civil Liberties Union attorney Kenneth Falk said two people defined a marriage, and “there’s no slippery slope.”
Earlier this month, a federal appeals court in Cincinnati heard oral arguments in an appeal of U.S. District Judge John Heyburn’s rulings striking down Kentucky’s same-sex marriage ban.