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Gay Marriage Legal in Wisconsin and Indiana: 7th. Circuit

By Brett Snider, Esq. on September 04, 2014 | Last updated on March 21, 2019

Wisconsin and Indiana gay couples were vindicated today by a Seventh Circuit ruling that found both states' gay marriage bans unconstitutional.

In a unanimous decision, the federal appellate court found that neither state was able to provide a rational basis for the same-sex marriage prohibition, leaving it to unconstitutionally deny gay couples equal protection of the laws. The Associated Press notes that with this new decision, the number of states with legalized gay marriage jumps from 19 to 21.

What else is important about this gay marriage decision?

Gay Marriage Now?

In June, both Wisconsin and Indiana had their states' gay marriage bans ruled unconstitutional in federal court. In both states, marriages began shortly after each respective federal district court decision, allowing hundreds of gay and lesbian couples to wed. However, upon accepting both appeals, the Seventh Circuit had stayed these decisions, effectively putting marriages on hold until it came to a decision.

Now the Seventh Circuit has come to a decision, so it appears that -- absent an emergency stay from the Supreme Court -- gay marriages can begin again in either state.

New Test for Discrimination

The traditional test for finding a law unconstitutional for violating the Fourteenth Amendment's guarantee of equal protection was to turn to the three levels of constitutional scrutiny. Many courts have chosen to elevate gays and lesbians to a quasi-suspect class, giving laws which discriminate against them a higher level of scrutiny. Others have chosen to apply the lowest level of scrutiny (rational basis) and still find the laws lacking.

In its opinion, the Seventh Circuit sought to clear the air with a new inquiry for testing whether laws are unconstitutionally discriminatory:

  1. Does it discriminate against a historically prejudiced group, resulting in harmful, unequal treatment?
  2. Is the discrimination based on immutable or tenacious characteristics?
  3. Does the law provide an important offsetting benefit to society as a whole?
  4. Is the law overinclusive or underinclusive in providing that benefit?

In answering these questions with regard to Indiana and Wisconsin's laws, the Seventh Circuit found they discriminated against a group that has been historically prejudiced (gays), who cannot and should not change their orientations. It also found that both states' reasons for denying gays marriage (childrearing and possible future harms) were either illusory or were poorly tailored in light of the reality of families in both states.

Near the tail end of its opinion, the Court reminded America that "[m]inorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law."

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