Inside Track: Same-Sex Marriage at the Seventh Circuit: A Legal Analysis of the Merits:

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    Same-Sex Marriage at the Seventh Circuit: A Legal Analysis of the Merits

    Christopher S. Krimmer

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    The fate of Wisconsin’s same-sex marriage ban is now in the hands of the Seventh Circuit Court of Appeals, which will hear oral arguments next week. In this article, attorney Christopher Krimmer explains how the arguments may shake out.

    Gay rights flagAug. 20, 2014 – The U.S. Court of Appeals for the Seventh Circuit is scheduled to hear oral arguments next week on whether Wisconsin’s “Marriage Amendment,” the state constitutional amendment prohibiting same-sex marriage, is a violation of the due process and equal protection rights of gay men and lesbians.

    The case, Wolf v. Walker1, has been consolidated with another same-sex marriage case, Baskin v. Bogin2, coming out of the U.S. District Court for the Southern District of Indiana. In both cases, the lower federal court held that the fundamental right to marriage was being denied to gay men and lesbians.

    The states of Wisconsin and Indiana appealed. The Seventh Circuit must now decide the issue in light of the U.S. Supreme Court’s landmark ruling last year, United States v. Windsor.3 This article highlights the legal arguments the court will consider.

    What Happened in Windsor?

    In Windsor, the Court held that Section 3 of the Defense of Marriage Act prohibiting the federal government from recognizing same-sex marriages was unconstitutional.

    The Court stated that when a state sanctions a same-sex marriage, the federal government cannot demean that marriage by treating it as a second-class marriage.

    The Court did not, however, go so far as to state that a state must grant a same-sex marriage in the first place. This latter, more fundamental issue, of whether the right to marriage extends to same-sex couples was argued in Windsor’s companion case, Hollingsworth v. Perry.4 The Court dismissed the Perry case for lack of standing so it never decided the broader constitutional issues of same-sex marriage.

    As a result, the lower courts have been left to decide whether the fundamental right to marriage includes gay and lesbian couples. To date, every lower court that has addressed the issue of same-sex marriage since the Windsor decision has held that gay men and lesbians have due process and equal protection rights to marry.

    Christopher Krimmercom christpher b-rlaw Christopher Krimmer (U.W. 1997), is a partner at Balisle & Roberson S.C. in Madison, practicing exclusively in the area of family law. He’s also an adjunct law professor at Marquette Law School. Reach him by phone at (608) 259-8702, by com christpher b-rlaw email.

    The Windsor decision, in one respect, was a narrow ruling addressing only the constitutionality of a single provision of the Defense of Marriage Act, but its impact has been monumental. The decision speaks of liberty interests of gay men and lesbians and the need for them to be treated equally, but also reaffirms the doctrine that marriage has always been a matter left to the states and principles of federalism should be respected.

    Although both sides of the debate can look to Windsor for support of their respective positions, so far, of the 29 case decisions addressing a post-Windsor marriage analysis, not a single decision held that federalism trumps the due process and equal protection rights of gay and lesbian couples. These marriage equality decisions include three federal courts of appeals rulings, six state court decisions, and twenty federal district court rulings, including this past summer’s Wolf decision by the Honorable Barbara Crabb of the U.S. District Court for the Western District of Wisconsin.5

    How Will Wolf v. Walker Shake Out?

    The Seventh Circuit seems poised to render its opinion and has expedited the case to do so. The preliminary issue that the Court will likely need to decide is what weight to give a 1972 summary ruling from the U.S. Supreme Court, Baker v. Nelson.6

    In Baker, the Minnesota Supreme Court held that Minnesota was not required to grant same-sex marriages under the U.S. Constitution. The case was appealed to the U.S. Supreme Court, which dismissed the case in a one sentence ruling stating: “[t]he appeal is dismissed for want of a substantial federal question.”

    This type of decision, known as a summary disposition, still has precedential value even though the merits of the case were not specifically addressed. Wisconsin and Indiana, and most states that are defending a state ban of same-sex marriage, have relied on Baker for the argument that the U.S. Supreme Court has already decided the issue of same-sex marriage and a lower federal court is without authority to overrule it.7

    The federal courts acknowledge that summary dispositions do have precedential weight. However, they are different from cases in which the merits have been addressed and decided. Specifically, a summary disposition need not be followed “when the doctrinal developments indicate” that the Court would take a different view now.8

    The Wisconsin and Indiana federal district courts both determined that the U.S. Supreme Court has taken a far different view of the rights of gay men and lesbians in recent years from its view in 1972 when Baker was decided.

    Both federal courts point to Lawrence v. Texas, in which the Court held that gay men and lesbians have a liberty interest in sexual intimacy.9 In addition, in the Romer v. Evans decision, the Supreme Court held that Colorado could not enact a constitutional amendment that prevented gays and lesbians from seeking equal rights.10

    Finally, both judges cited to the Supreme Court’s ruling last year in United States v. Windsor, in which the Court held that the federal government could not discriminate against married same-sex couples simply out of animus towards an unpopular group.11

    In light of this doctrinal development in gay and lesbian rights, the district courts found that Baker v. Nelson is no longer good precedent.12

    If the Seventh Circuit Court of Appeals agrees with the lower courts regarding the lack of precedential value of the Baker decision, then it would need to engage in a due process and equal protection analysis. The due process analysis surrounds the issue of whether the right to marriage includes same-sex marriage.

    Framing the Issue

    If a law impinges on a fundamental right, then the Court will likely employ the highest standard of review known as “strict scrutiny.” Rarely, does such a law survive strict scrutiny. If there is no fundamental right involved, then the Court will employ the lowest standard of review known as “rational basis.”

    If the law has any rational basis, it will be upheld. So, the question for Seventh Circuit is whether the same-sex marriage bans impinge on a fundamental right. If so, then it is very likely the bans on same-sex marriage will fall. If there is no fundamental right involved, then it is more likely that the state bans will be upheld.

    Whether there is a fundamental right present in these cases depends on how the Seventh Circuit frames the due process issue. The state of Wisconsin frames the issue as “whether there is a fundamental right to same-sex marriage.”

    Conversely, the plaintiff couples frame the issue as “whether the fundamental right to marriage is being denied to same-sex couples.”

    This is not merely semantics. In order for a right to be considered a fundamental right deserving of strict scrutiny, the right must be “rooted in our Nation’s history and traditions.”13 Obviously, same-sex marriage, itself, has not been rooted in our nation’s history or tradition. Same-sex marriage did not become legal in the U.S. until 2004 when Massachusetts legalized it in a state supreme court decision. However, marriage, in a more general sense, is clearly deeply rooted in our nation’s history and tradition.

    If the Court frames the issue as a “fundamental right to marriage” versus a “fundamental right to same-sex marriage,” then the Court will most likely adopt the reasoning of the 20 other federal court decisions that held the right to marry was being denied to gay and lesbian couples. If the Court elects to narrowly frame the issue to whether there is a historical right to “same-sex marriage,” then the Court will likely deny that right to gay men and lesbians.

    In the Indiana and Wisconsin cases before the Seventh Circuit, both lower federal court judges explained that whether there is a history or tradition of “same-sex marriage” misses the mark; the inquiry should not be narrowed by the very exclusions at issue.14

    Loving v. Virginiaand Suspect Class?

    For example, in Loving v. Virginia, the U.S. Supreme Court held that it was a violation of due process to deny interracial couples the right to marry. The U.S. Supreme Court did not frame the due process inquiry as to whether there was a “fundamental right to interracial marriage.” Rather, the Court’s due process analysis was whether the “fundamental right to marriage” was being denied to interracial couples.15

    The Wisconsin and Indiana District Court judges both applied the same analysis provided by the U.S. Supreme Court in Loving when looking to the issue of same-sex marriage. They rejected the notion that there has to be a history and tradition of same-sex marriage itself, but rather whether the right to marriage was being denied to same-sex couples. An attorney reading the future Seventh Circuit Court decision can reliably predict the outcome of the due process analysis within the first few sentences of the opinion by looking at the language the Court chooses to frame the due process inquiry.

    The Wolf and Baskin cases are marriage cases, but they are also more than that issue alone. These cases raise the issue of whether sexual orientation is a suspect or quasi-suspect class under an equal protection analysis. If gays and lesbians constitute a protected class, then the courts must employ a heightened level of judicial review.

    A law that classifies on the basis of a suspect class is subject to strict scrutiny (e.g. race). A law that distinguishes on the basis of a quasi-suspect class is subject to an intermediate standard of review (e.g. gender). A law that does not involve either a suspect or quasi-suspect class will be subject to a rational basis standard of review.

    If the Seventh Circuit Court determines that gay men and lesbians constitute either a suspect or quasi-suspect class, the impact of that decision will reach far beyond the issue of marriage. Anytime a law distinguishes rights or benefits on the basis of sexual orientation, the state will have to meet a higher burden of how it can justify distinguishing between heterosexual individuals and gay men and lesbians.

    Although much of the current public discourse is on same-sex marriage, there are other areas of life in which gay men and lesbians are not afforded equal rights. For example, it is still legal in 29 states for an employer to fire a person because they are gay or lesbian.16 These marriage decisions may be the death knell for all forms of discrimination on the basis of sexual orientation.

    There is an interesting difference between how the judges in the Indiana and Wisconsin marriage cases addressed this equal protection analysis. U.S. District Judge Young of the Indiana District Court held that the Seventh Circuit had already determined that gay men and lesbians are not a protected class and the rational basis standard should apply to whether the denial of marriage violates their equal protection rights.17

    Interestingly, even though he employed the most deferential standard of review, he still found that there was no rational basis to deny the right of marriage to same-sex couples.18 Conversely, U.S. District Judge Crabb, in the Wisconsin decision, determined that the Seventh Circuit has yet to determine whether gay men and lesbians constitute a protected class.19 The Court then proceeded to find that gay men and lesbians are indeed a quasi-suspect class similar to gender.20 Hence, if Judge Crabb’s analysis is upheld, any legal classification based on sexual orientation must further a “sufficiently important state interest” that is “closely tailored to effectuate those interests.”21


    Whatever the Seventh Circuit Court decides with respect to sexual orientation and the designation of suspect or quasi-suspect class, the U.S. Supreme Court will likely need to make the final determination when presented with the issue of same sex marriage.

    To date, the Court has not explicitly identified whether gays and lesbians are a protected class.22 When addressing sexual orientation in the past, the Court has cited language commonly used in the context of a rational basis analysis but then they have clearly applied a more heightened standard of review.23

    The U.S. Supreme Court and the Seventh Circuit Court will be deciding these same-sex marriage cases in a very different social and political climate from when these bans were enacted. In Wisconsin, the marriage ban was passed by a 59 percent of voters.24

    Today, the numbers are reversed, with 59 percent of residents in favor of repealing the ban.25 A 55 percent majority of Wisconsin residents favor legalizing same-sex marriage.26 Fifty percent of the U.S. population believes that the Equal Protection Clause guarantees the right for gay men and lesbians to marry.27

    Beyond the constitutional question, a record high of 59 percent of those on a nationwide level support same-sex marriage.28 The Courts do not operate in a vacuum. Whether society influences the law, or the law influences society, it seems that the tide is certainly moving in the direction of marriage equality.


    1 Wolf v. Walker, 986 F.Supp.2d 982 (W.D. Wis. 2104).

    2 Baskin v. Zoeller, 2014 WL 1568884 (S.D. Indiana).

    3 570 U.S. 12 (2013).

    4 Hollingsworth v. Pery, 570 U.S. __ (2013)

    5 Id.

    6 191 N.W.2d 185 (Minn. 1971).

    7 Wolf at p. 7- 12 (Judge Crabb’s June 6, 2014 Order), Baskin at p. 11 – 14 (Judge Young’s June 25, 2014 Order); See e.g. Kitchen v. Herbert, 2014 WL 2868044 (10th Cir.).

    8 Hicks v. Miranda, 422 U.S. 332, 344 (1975).

    9 539 U.S. 558 (2003).

    10 517 U.S. 620 (1996).

    11 Supra at 3.

    12 Supra at 13.

    13 Washington v. Glucksberg, 521 U.S. 702 (1997).

    14 Wolf decision at p. 34 (June 6, 2014 Order) (“Both Lawrence and Loving support a view that the state cannot rely on a history of exclusion to narrow the scope of the right. When the Supreme Court decided those cases, there had been a long history of states denying the rights being asserted.”)

    15 Loving v. Virginia, 388 U.S. 1, 7 (1967).

    16 Human Rights Campaign, Employment Non-Discrimination Act.

    17 Baskin at p. 24 (June 25, 2014 Order) (“The Court…believes it is bound to apply rational basis because one of the cases the Court relied on in Schroeder, e.g. Romer, is still valid law.”)

    18 Id. at 28.

    19 Wolf at p. 53 (June 6, 2014 Order).

    20 Id. at 58-59.

    21 Id at 63.

    22 Lee v. Orr, 13-CV-8719, 2013 WL 6490577 n. 1 (N.D. Ill. 2013) (“[T]he Supreme Court has yet to expressly state the level of scrutiny that courts are to apply to claims based on sexual orientation.”)

    23 See e.g. Romer v. Evans, 517 U.S. 620 (1996).

    24 Election 2006, Ballot Measures,

    25 Marquette University Law School Poll, March 20-23, 2014.

    26 Chuck Quirmbach, Poll: 55 Percent Support Same-Sex-Marriage in Wisconsin, Wisconsin Public Radio,

    27 Peyton M. Craighill and Scott Clement, Support for same-sex marriage hits new high; half say Constitution guarantees right, The Washington Post.

    28 Id.