Virginia Wolf v. Scott Walker

In the

United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 14-2386 to 14-2388

MARILYN RAE BASKIN, et al.,

Plaintiffs-Appellees,

v.

PENNY BOGAN, et al.,

Defendants-Appellants.

____________________

Appeals from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

Nos. 1:14-cv-00355-RLY-TAB, 1:14-cv-00404-RLY-TAB,

1:14-cv-00406-RLY-MJD — Richard L. Young, Chief Judge.

____________________

No. 14-2526

VIRGINIA WOLF, et al.,

Plaintiffs-Appellees,

v.

SCOTT WALKER, et al.,

Defendants-Appellants.

____________________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 3:14-cv-00064-bbc — Barbara B. Crabb, Judge.

______________________

2 Nos. 14-2386 to 14-2388, 14-2526

ARGUED AUGUST 26, 2014 — DECIDED SEPTEMBER 4, 2014

____________________

Before POSNER, WILLIAMS, and HAMILTON, Circuit Judges.

POSNER, Circuit Judge. Indiana and Wisconsin are among

the shrinking majority of states that do not recognize the va-

lidity of same-sex marriages, whether contracted in these

states or in states (or foreign countries) where they are law-

ful. The states have appealed from district court decisions

invalidating the states’ laws that ordain such refusal.

Formally these cases are about discrimination against the

small homosexual minority in the United States. But at a

deeper level, as we shall see, they are about the welfare of

American children. The argument that the states press hard-

est in defense of their prohibition of same-sex marriage is

that the only reason government encourages marriage is to

induce heterosexuals to marry so that there will be fewer

“accidental births,” which when they occur outside of mar-

riage often lead to abandonment of the child to the mother

(unaided by the father) or to foster care. Overlooked by this

argument is that many of those abandoned children are

adopted by homosexual couples, and those children would

be better off both emotionally and economically if their

adoptive parents were married.

We are mindful of the Supreme Court’s insistence that

“whether embodied in the Fourteenth Amendment or in-

ferred from the Fifth, equal protection is not a license for

courts to judge the wisdom, fairness, or logic of legislative

choices. In areas of social and economic policy, a statutory

classification that neither proceeds along suspect lines nor in-

fringes fundamental constitutional rights must be upheld

Nos. 14-2386 to 14-2388, 14-2526 3

against equal protection challenge if there is any reasonably

conceivable state of facts that could provide a rational basis

for the classification.” FCC v. Beach Communications, Inc., 508

U.S. 307, 313 (1993) (emphasis added). The phrase we’ve ital-

icized is the exception applicable to this pair of cases.

We hasten to add that even when the group discriminat-

ed against is not a “suspect class,” courts examine, and

sometimes reject, the rationale offered by government for the

challenged discrimination. See, e.g., Village of Willowbrook v.

Olech, 528 U.S. 562 (2000) (per curiam); City of Cleburne v.

Cleburne Living Center, 473 U.S. 432, 448–50 (1985). In Vance v.

Bradley, 440 U.S. 93, 111 (1979), an illustrative case in which

the Supreme Court accepted the government’s rationale for

discriminating on the basis of age, the majority opinion de-

voted 17 pages to analyzing whether Congress had had a

“reasonable basis” for the challenged discrimination (requir-

ing foreign service officers but not ordinary civil servants to

retire at the age of 60), before concluding that it did.

We’ll see that the governments of Indiana and Wisconsin

have given us no reason to think they have a “reasonable ba-

sis” for forbidding same-sex marriage. And more than a rea-

sonable basis is required because this is a case in which the

challenged discrimination is, in the formula from the Beach

case, “along suspect lines.” Discrimination by a state or the

federal government against a minority, when based on an

immutable characteristic of the members of that minority

(most familiarly skin color and gender), and occurring

against an historical background of discrimination against

the persons who have that characteristic, makes the discrim-

inatory law or policy constitutionally suspect. See, e.g., Bow-

en v. Gilliard, 483 U.S. 587, 602–03 (1987); Regents of University

4 Nos. 14-2386 to 14-2388, 14-2526

of California v. Bakke, 438 U.S. 265, 360–62 (1978); St. John’s

United Church of Christ v. City of Chicago, 502 F.3d 616, 638

(7th Cir. 2007); Wilkins v. Gaddy, 734 F.3d 344, 348 (4th Cir.

2013); Gallagher v. City of Clayton, 699 F.3d 1013, 1018–19 (8th

Cir. 2012). These circumstances create a presumption that

the discrimination is a denial of the equal protection of the

laws (it may violate other provisions of the Constitution as

well, but we won’t have to consider that possibility). The

presumption is rebuttable, if at all, only by a compelling

showing that the benefits of the discrimination to society as a

whole clearly outweigh the harms to its victims. See, e.g.,

Grutter v. Bollinger, 539 U.S. 306, 326–27 (2003); United States

v. Virginia, 518 U.S. 515, 531–33 (1996).

The approach is straightforward but comes wrapped, in

many of the decisions applying it, in a formidable doctrinal

terminology—the terminology of rational basis, of strict,

heightened, and intermediate scrutiny, of narrow tailoring,

fundamental rights, and the rest. We’ll be invoking in places

the conceptual apparatus that has grown up around this

terminology, but our main focus will be on the states’ argu-

ments, which are based largely on the assertion that banning

same-sex marriage is justified by the state’s interest in chan-

neling procreative sex into (necessarily heterosexual) mar-

riage. We will engage the states’ arguments on their own

terms, enabling us to decide our brace of cases on the basis

of a sequence of four questions:

1. Does the challenged practice involve discrimination,

rooted in a history of prejudice, against some identifiable

group of persons, resulting in unequal treatment harmful to

them?

Nos. 14-2386 to 14-2388, 14-2526 5

2. Is the unequal treatment based on some immutable or

at least tenacious characteristic of the people discriminated

against (biological, such as skin color, or a deep psychologi-

cal commitment, as religious belief often is, both types being

distinct from characteristics that are easy for a person to

change, such as the length of his or her fingernails)? The

characteristic must be one that isn’t relevant to a person’s

ability to participate in society. Intellect, for example, has a

large immutable component but also a direct and substantial

bearing on qualifications for certain types of employment

and for legal privileges such as entitlement to a driver’s li-

cense, and there may be no reason to be particularly suspi-

cious of a statute that classifies on that basis.

3. Does the discrimination, even if based on an immuta-

ble characteristic, nevertheless confer an important offsetting

benefit on society as a whole? Age is an immutable charac-

teristic, but a rule prohibiting persons over 70 to pilot airlin-

ers might reasonably be thought to confer an essential bene-

fit in the form of improved airline safety.

4. Though it does confer an offsetting benefit, is the dis-

criminatory policy overinclusive because the benefit it con-

fers on society could be achieved in a way less harmful to

the discriminated-against group, or underinclusive because

the government’s purported rationale for the policy implies

that it should equally apply to other groups as well? One

way to decide whether a policy is overinclusive is to ask

whether unequal treatment is essential to attaining the de-

sired benefit. Imagine a statute that imposes a $2 tax on

women but not men. The proceeds from that tax are, let’s

assume, essential to the efficient operation of government.

The tax is therefore socially efficient, and the benefits clearly

6 Nos. 14-2386 to 14-2388, 14-2526

outweigh the costs. But that’s not the end of the inquiry. Still

to be determined is whether the benefits from imposing the

tax only on women outweigh the costs. And likewise in a

same-sex marriage case the issue is not whether heterosexual

marriage is a socially beneficial institution but whether the

benefits to the state from discriminating against same-sex

couples clearly outweigh the harms that this discrimination

imposes.

Our questions go to the heart of equal protection doc-

trine. Questions 1 and 2 are consistent with the various for-

mulas for what entitles a discriminated-against group to

heightened scrutiny of the discrimination, and questions 3

and 4 capture the essence of the Supreme Court’s approach

in heightened-scrutiny cases: “To succeed, the defender of

the challenged action must show ‘at least that the classifica-

tion serves important governmental objectives and that the

discriminatory means employed are substantially related to

the achievement of those objectives.’” United States v. Virgin-

ia, supra, 518 U.S. at 524 (1996), quoting Mississippi University

for Women v. Hogan, 458 U.S. 718, 724 (1982).

The difference between the approach we take in these

two cases and the more conventional approach is semantic

rather than substantive. The conventional approach doesn’t

purport to balance the costs and benefits of the challenged

discriminatory law. Instead it evaluates the importance of

the state’s objective in enacting the law and the extent to

which the law is suited (“tailored”) to achieving that objec-

tive. It asks whether the statute actually furthers the interest

that the state asserts and whether there might be some less

burdensome alternative. The analysis thus focuses not on

“costs” and “benefits” as such, but on “fit.” That is why the

Nos. 14-2386 to 14-2388, 14-2526 7

briefs in these two cases overflow with debate over whether

prohibiting same-sex marriage is “over- or underinclu-

sive”—for example, overinclusive in ignoring the effect of

the ban on the children adopted by same-sex couples, under-

inclusive in extending marriage rights to other non-

procreative couples. But to say that a discriminatory policy

is overinclusive is to say that the policy does more harm to

the members of the discriminated-against group than neces-

sary to attain the legitimate goals of the policy, and to say

that the policy is underinclusive is to say that its exclusion of

other, very similar groups is indicative of arbitrariness.

Although the cases discuss, as we shall be doing in this

opinion, the harms that a challenged statute may visit upon

the discriminated-against group, those harms don’t formally

enter into the conventional analysis. When a statute discrim-

inates against a protected class (as defined for example in

our question 2), it doesn’t matter whether the harm inflicted

by the discrimination is a grave harm. As we said, a statute

that imposed a $2 tax on women but not men would be

struck down unless there were a compelling reason for the

discrimination. It wouldn’t matter that the harm to each per-

son discriminated against was slight if the benefit of impos-

ing the tax only on women was even slighter.

Our pair of cases is rich in detail but ultimately straight-

forward to decide. The challenged laws discriminate against

a minority defined by an immutable characteristic, and the

only rationale that the states put forth with any conviction—

that same-sex couples and their children don’t need marriage

because same-sex couples can’t produce children, intended or

unintended—is so full of holes that it cannot be taken seri-

ously. To the extent that children are better off in families in

8 Nos. 14-2386 to 14-2388, 14-2526

which the parents are married, they are better off whether

they are raised by their biological parents or by adoptive

parents. The discrimination against same-sex couples is irra-

tional, and therefore unconstitutional even if the discrimina-

tion is not subjected to heightened scrutiny, which is why

we can largely elide the more complex analysis found in

more closely balanced equal-protection cases.

It is also why we can avoid engaging with the plaintiffs’

further argument that the states’ prohibition of same-sex

marriage violates a fundamental right protected by the due

process clause of the Fourteenth Amendment. The plaintiffs

rely on cases such as Hodgson v. Minnesota, 497 U.S. 417, 435

(1990), and Zablocki v. Redhail, 434 U.S. 374, 383–86 (1978),

that hold that the right to choose whom to marry is indeed a

fundamental right. The states reply that the right recognized

in such cases is the right to choose from within the class of

persons eligible to marry, thus excluding children, close rela-

tives, and persons already married—and, the states contend,

persons of the same sex. The plaintiffs riposte that there are

good reasons for ineligibility to marry children, close rela-

tives, and the already married, but not for ineligibility to

marry persons of the same sex. In light of the compelling al-

ternative grounds that we’ll be exploring for allowing same-

sex marriage, we won’t have to engage with the parties’

“fundamental right” debate; we can confine our attention to

equal protection.

We begin our detailed analysis of whether prohibiting

same-sex marriage denies equal protection of the laws by

noting that Indiana and Wisconsin, in refusing to authorize

such marriage or (with limited exceptions discussed later) to

recognize such marriages made in other states by residents

Nos. 14-2386 to 14-2388, 14-2526 9

of Indiana or Wisconsin, are discriminating against homo-

sexuals by denying them a right that these states grant to

heterosexuals, namely the right to marry an unmarried adult

of their choice. And there is little doubt that sexual orienta-

tion, the ground of the discrimination, is an immutable (and

probably an innate, in the sense of in-born) characteristic ra-

ther than a choice. Wisely, neither Indiana nor Wisconsin ar-

gues otherwise. The American Psychological Association has

said that “most people experience little or no sense of choice

about their sexual orientation.” APA, “Answers to Your

Questions: For a Better Understanding of Sexual Orientation

& Homosexuality” 2 (2008), www.apa.org/topics/lgbt/orien

tation.pdf (visited Sept. 2, 2014, as were the other websites

cited in this opinion); see also Gregory M. Herek et al., “De-

mographic, Psychological, and Social Characteristics of Self-

Identified Lesbian, Gay, and Bisexual Adults in a US Proba-

bility Sample,” 7 Sexuality Research and Social Policy 176, 188

(2010) (“combining respondents who said they’d had a small

amount of choice with those reporting no choice, 95% of gay

men and 84% of lesbians could be characterized as perceiv-

ing that they had little or no choice about their sexual orien-

tation”). That homosexual orientation is not a choice is fur-

ther suggested by the absence of evidence (despite extensive

efforts to find it) that psychotherapy is effective in altering

sexual orientation in general and homosexual orientation in

particular. APA, “Answers to Your Questions,” supra, at 3;

Report of the American Psychological Association Task Force on

Appropriate Therapeutic Responses to Sexual Orientation 35–41

(2009).

The leading scientific theories of the causes of homosex-

uality are genetic and neuroendocrine theories, the latter be-

ing theories that sexual orientation is shaped by a fetus’s ex-

10 Nos. 14-2386 to 14-2388, 14-2526

posure to certain hormones. See, e.g., J. Michael Bailey, “Bio-

logical Perspectives on Sexual Orientation,” in Lesbian, Gay,

and Bisexual Identities Over the Lifespan: Psychological Perspec-

tives 102–30 (Anthony R. D’Augelli and Charlotte J. Patter-

son eds. 1995); Barbara L. Frankowski, “Sexual Orientation

and Adolescents,” 113 Pediatrics 1827, 1828 (2004). Although

it seems paradoxical to suggest that homosexuality could

have a genetic origin, given that homosexual sex is non-

procreative, homosexuality may, like menopause, by reduc-

ing procreation by some members of society free them to

provide child-caring assistance to their procreative relatives,

thus increasing the survival and hence procreative prospects

of these relatives. This is called the “kin selection hypothe-

sis” or the “helper in the nest theory.” See, e.g., Association

for Psychological Science, ”Study Reveals Potential Evolu-

tionary Role for Same-Sex Attraction,” Feb. 4, 2010,

www.psychologicalscience.org/media/releases/2010/vasey.cf

m. There are other genetic theories of such attraction as well.

See, e.g., Nathan W. Bailey and Marlene Zuk, “Same-Sex

Sexual Behavior and Evolution,” forthcoming in Trends in

Ecology and Evolution, www.faculty.ucr.edu/~mzuk/Bai

ley%20and%20Zuk%202009%20Same%20sex%20behaviour.

pdf. For a responsible popular treatment of the subject see

William Kremer, “The Evolutionary Puzzle of Homosexuali-

ty,” BBC News Magazine, Feb. 17, 2014, www.bbc

.com/news/magazine-26089486.

The harm to homosexuals (and, as we’ll emphasize, to

their adopted children) of being denied the right to marry is

considerable. Marriage confers respectability on a sexual re-

lationship; to exclude a couple from marriage is thus to deny

it a coveted status. Because homosexuality is not a voluntary

condition and homosexuals are among the most stigmatized,

Nos. 14-2386 to 14-2388, 14-2526 11

misunderstood, and discriminated-against minorities in the

history of the world, the disparagement of their sexual orien-

tation, implicit in the denial of marriage rights to same-sex

couples, is a source of continuing pain to the homosexual

community. Not that allowing same-sex marriage will

change in the short run the negative views that many Amer-

icans hold of same-sex marriage. But it will enhance the sta-

tus of these marriages in the eyes of other Americans, and in

the long run it may convert some of the opponents of such

marriage by demonstrating that homosexual married cou-

ples are in essential respects, notably in the care of their

adopted children, like other married couples.

The tangible as distinct from the psychological benefits of

marriage, which (along with the psychological benefits) en-

ure directly or indirectly to the children of the marriage,

whether biological or adopted, are also considerable. In In-

diana they include the right to file state tax returns jointly,

Ind. Code § 6-3-4-2(d); the marital testimonial privilege, § 34-

46-3-1(4); spousal-support obligations, § 35-46-1-6(a); survi-

vor benefits for the spouse of a public safety officer killed in

the line of duty, § 36-8-8-13.8(c); the right to inherit when a

spouse dies intestate, § 29-1-2-1(b), (c); custodial rights to

and child support obligations for children of the marriage,

and protections for marital property upon the death of a

spouse. §§ 12-15-8.5-3(1); 12-20-27-1(a)(2)(A). Because Wis-

consin allows domestic partnerships, some spousal benefits

are available to same-sex couples in that state. But others are

not, such as the right to adopt children jointly, Wis. Stat.

§ 48.82(1); spousal-support obligations, §§ 765.001(2),

766.15(1), 766.55; the presumption that all property of mar-

ried couples is marital property, § 766.31(2); and state-

12 Nos. 14-2386 to 14-2388, 14-2526

mandated access to enrollment in a spouse’s health insur-

ance plan, § 632.746(7).

Of great importance are the extensive federal benefits to

which married couples are entitled: the right to file income

taxes jointly, 26 U.S.C. § 6013; social security spousal and

surviving-spouse benefits, 42 U.S.C. § 402; death benefits for

surviving spouse of a military veteran, 38 U.S.C. § 1311; the

right to transfer assets to one’s spouse during marriage or at

divorce without additional tax liability, 26 U.S.C. § 1041; ex-

emption from federal estate tax of property that passes to the

surviving spouse, 26 U.S.C. § 2056(a); the tax exemption for

employer-provided healthcare to a spouse, 26 U.S.C. § 106;

Treas. Reg. § 1.106–1; and healthcare benefits for spouses of

federal employees, 5 U.S.C. §§ 8901(5), 8905.

The denial of these federal benefits to same-sex couples

brings to mind the Supreme Court’s opinion in United States

v. Windsor, 133 S. Ct. 2675, 2694–95 (2013), which held un-

constitutional the denial of all federal marital benefits to

same-sex marriages recognized by state law. The Court’s

criticisms of such denial apply with even greater force to In-

diana’s law. The denial “tells those couples, and all the

world, that their otherwise valid marriages are unworthy of

federal recognition. [No same-sex marriages are valid in In-

diana.] This places same-sex couples in an unstable position

of being in a second-tier marriage [in Indiana, in the low-

est—the unmarried—tier]. The differentiation demeans the

couple … [and] humiliates tens of thousands of children

now being raised by same-sex couples. The law … makes it

even more difficult for the children to understand the integ-

rity and closeness of their own family and its concord with

Nos. 14-2386 to 14-2388, 14-2526 13

other families in their community and in their daily lives.”

Id. at 2694.

The Court went on to describe at length the federal mari-

tal benefits denied by the Defense of Marriage Act to mar-

ried same-sex couples. Of particular relevance to our two

cases is the Court’s finding that denial of those benefits

causes economic harm to children of same-sex couples. “It

raises the cost of health care for families by taxing health

benefits provided by employers to their workers’ same-sex

spouses. And it denies or reduces benefits allowed to fami-

lies upon the loss of a spouse and parent, benefits that are an

integral part of family security. [The Act also] divests mar-

ried same-sex couples of the duties and responsibilities that

are an essential part of married life and that they in most

cases would be honored to accept.” Id. at 2695 (citations

omitted).

Of course there are costs to marriage as well as benefits,

not only the trivial cost of the marriage license but also the

obligations, such as alimony, that a divorcing spouse may be

forced to bear. But those are among “the duties and respon-

sibilities that are an essential part of married life and that

[the spouses] in most cases would be honored to accept.”

That marriage continues to predominate over cohabitation

as a choice of couples indicates that on average the sum of

the tangible and intangible benefits of marriage outweighs

the costs.

In light of the foregoing analysis it is apparent that

groundless rejection of same-sex marriage by government

must be a denial of equal protection of the laws, and there-

fore that Indiana and Wisconsin must to prevail establish a

clearly offsetting governmental interest in that rejection.

14 Nos. 14-2386 to 14-2388, 14-2526

Whether they have done so is really the only issue before us,

and the balance of this opinion is devoted to it—except that

before addressing it we must address the states’ argument

that whatever the merits of the plaintiffs’ claims, we are

bound by Baker v. Nelson, 409 U.S. 810 (1972) (mem.), to reject

them. For there the Supreme Court, without issuing an opin-

ion, dismissed “for want of a substantial federal question”

an appeal from a state court that had held that prohibiting

same-sex marriage did not violate the Constitution. Alt-

hough even a decision without opinion is on the merits and

so binds lower courts, the Supreme Court carved an excep-

tion to this principle of judicial hierarchy in Hicks v. Miranda,

422 U.S. 332, 344 (1975), for “when doctrinal developments

indicate otherwise”; see also United States v. Blaine County,

363 F.3d 897, 904 (9th Cir. 2004); Soto-Lopez v. New York City

Civil Service Commission, 755 F.2d 266, 272 (2d Cir. 1985).

Baker was decided in 1972—42 years ago and the dark ages

so far as litigation over discrimination against homosexuals

is concerned. Subsequent decisions such as Romer v. Evans, 517

U.S. 620, 634–36 (1996); Lawrence v. Texas, 539 U.S. 558, 577–

79 (2003), and United States v. Windsor are distinguishable

from the present two cases but make clear that Baker is no

longer authoritative. At least we think they’re distinguisha-

ble. But Justice Scalia, in a dissenting opinion in Lawrence,

539 U.S. at 586, joined by Chief Justice Rehnquist and Justice

Thomas, thought not. He wrote that “principle and logic”

would require the Court, given its decision in Lawrence, to

hold that there is a constitutional right to same-sex marriage.

Id. at 605.

First up to bat is Indiana, which defends its refusal to al-

low same-sex marriage on a single ground, namely that gov-

ernment’s sole purpose (or at least Indiana’s sole purpose) in

Nos. 14-2386 to 14-2388, 14-2526 15

making marriage a legal relation (unlike cohabitation, which

is purely contractual) is to enhance child welfare. Notably

the state does not argue that recognizing same-sex marriage

undermines conventional marriage.

When a child is conceived intentionally, the parents

normally intend to raise the child together. But pregnancy,

and the resulting birth (in the absence of abortion), are some-

times accidental, unintended; and often in such circumstanc-

es the mother is stuck with the baby—the father, not having

wanted to become a father, refuses to take any responsibility

for the child’s welfare. The sole reason for Indiana’s mar-

riage law, the state’s argument continues, is to try to channel

unintentionally procreative sex into a legal regime in which

the biological father is required to assume parental responsi-

bility. The state recognizes that some or even many homo-

sexuals want to enter into same-sex marriages, but points

out that many people want to enter into relations that gov-

ernment refuses to enforce or protect (friendship being a no-

table example). Government has no interest in recognizing

and protecting same-sex marriage, Indiana argues, because

homosexual sex cannot result in unintended births.

As for the considerable benefits that marriage confers on

the married couple, these in the state’s view are a part of the

regulatory regime: the carrot supplementing the stick. Mari-

tal benefits for homosexual couples would not serve the reg-

ulatory purpose of marital benefits for heterosexual couples

because homosexual couples don’t produce babies.

The state’s argument can be analogized to requiring

drivers’ licenses for drivers of motor vehicles but not for bi-

cyclists. Motor vehicles are more dangerous to other users of

the roads than bicycles are, and therefore a driver’s license is

16 Nos. 14-2386 to 14-2388, 14-2526

required to drive the former but not to pedal the latter. Bicy-

clists do not and cannot complain about not having to have a

license to pedal, because obtaining, renewing, etc., the li-

cense would involve a cost in time and money. The analogy

is not perfect (if it were, it would be an identity not an anal-

ogy) because marriage confers benefits as well as imposing

costs, as we have emphasized (indeed it confers on most

couples benefits greater than the costs). But those benefits, in

Indiana’s view, would serve no state interest if extended to

homosexual couples, who should therefore be content with

the benefits they derive from being excluded from the mar-

riage-licensing regime: the cost of the license and the burden

of marital duties, such as support, and the costs associated

with divorce. Moreover, even if possession of a driver’s li-

cense conferred benefits not available to bicyclists (dis-

counts, or tax credits, perhaps), the state could argue that it

offered these benefits only to induce drivers to obtain a li-

cense (the carrot supplementing the stick), and that bicyclists

don’t create the same regulatory concern and so don’t de-

serve a carrot.

Another analogy: The federal government extends a

$2000 “saver’s credit” to low- and middle-income workers

who contribute to a retirement account. Although everyone

would like a $2000 credit, only lower-income workers are

entitled to it. Should higher-income workers complain about

being left out of the program, the government could reply

that only lower-income workers create a regulatory con-

cern—the concern that they’d be unable to support them-

selves in retirement without government encouragement to

save while they’re young.

Nos. 14-2386 to 14-2388, 14-2526 17

In short, Indiana argues that homosexual relationships

are created and dissolved without legal consequences be-

cause they don’t create family-related regulatory concerns.

Yet encouraging marriage is less about forcing fathers to

take responsibility for their unintended children—state law

has mechanisms for determining paternity and requiring the

father to contribute to the support of his children—than

about enhancing child welfare by encouraging parents to

commit to a stable relationship in which they will be raising

the child together. Moreover, if channeling procreative sex

into marriage were the only reason that Indiana recognizes

marriage, the state would not allow an infertile person to

marry. Indeed it would make marriage licenses expire when

one of the spouses (fertile upon marriage) became infertile

because of age or disease. The state treats married homosex-

uals as would-be “free riders” on heterosexual marriage, un-

reasonably reaping benefits intended by the state for fertile

couples. But infertile couples are free riders too. Why are

they allowed to reap the benefits accorded marriages of fer-

tile couples, and homosexuals are not?

The state offers an involuted pair of answers, neither of

which answers the charge that its policy toward same-sex

marriage is underinclusive. It points out that in the case of

most infertile heterosexual couples, only one spouse is infer-

tile, and it argues that if these couples were forbidden to

marry there would be a risk of the fertile spouse’s seeking a

fertile person of the other sex to breed with and the result

would be “multiple relationships that might yield uninten-

tional babies.” True, though the fertile member of an infertile

couple might decide instead to produce a child for the cou-

ple by surrogacy or (if the fertile member is the woman) a

sperm bank, or to adopt, or to divorce. But what is most un-

18 Nos. 14-2386 to 14-2388, 14-2526

likely is that the fertile member, though desiring a biological

child, would have procreative sex with another person and

then abandon the child—which is the state’s professed fear.

The state tells us that “non-procreating opposite-sex cou-

ples who marry model the optimal, socially expected behav-

ior for other opposite-sex couples whose sexual intercourse

may well produce children.” That’s a strange argument; fer-

tile couples don’t learn about child-rearing from infertile

couples. And why wouldn’t same-sex marriage send the

same message that the state thinks marriage of infertile het-

erosexuals sends—that marriage is a desirable state?

It’s true that infertile or otherwise non-procreative heter-

osexual couples (some fertile couples decide not to have

children) differ from same-sex couples in that it is easier for

the state to determine whether a couple is infertile by reason

of being of the same sex. It would be considered an invasion

of privacy to condition the eligibility of a heterosexual cou-

ple to marry on whether both prospective spouses were fer-

tile (although later we’ll see Wisconsin flirting with such an

approach with respect to another class of infertile couples).

And often the couple wouldn’t know in advance of marriage

whether they were fertile. But then how to explain Indiana’s

decision to carve an exception to its prohibition against mar-

riage of close relatives for first cousins 65 or older—a popu-

lation guaranteed to be infertile because women can’t con-

ceive at that age? Ind. Code § 31-11-1-2. If the state’s only in-

terest in allowing marriage is to protect children, why has it

gone out of its way to permit marriage of first cousins only

after they are provably infertile? The state must think mar-

riage valuable for something other than just procreation—

that even non-procreative couples benefit from marriage.

Nos. 14-2386 to 14-2388, 14-2526 19

And among non-procreative couples, those that raise chil-

dren, such as same-sex couples with adopted children, gain

more from marriage than those who do not raise children,

such as elderly cousins; elderly persons rarely adopt.

Indiana has thus invented an insidious form of discrimi-

nation: favoring first cousins, provided they are not of the

same sex, over homosexuals. Elderly first cousins are permit-

ted to marry because they can’t produce children; homosex-

uals are forbidden to marry because they can’t produce chil-

dren. The state’s argument that a marriage of first cousins

who are past child-bearing age provides a “model [of] fami-

ly life for younger, potentially procreative men and women”

is impossible to take seriously.

At oral argument the state‘s lawyer was asked whether

“Indiana’s law is about successfully raising children,” and

since “you agree same-sex couples can successfully raise

children, why shouldn’t the ban be lifted as to them?” The

lawyer answered that “the assumption is that with opposite-

sex couples there is very little thought given during the sex-

ual act, sometimes, to whether babies may be a conse-

quence.” In other words, Indiana’s government thinks that

straight couples tend to be sexually irresponsible, producing

unwanted children by the carload, and so must be pressured

(in the form of governmental encouragement of marriage

through a combination of sticks and carrots) to marry, but

that gay couples, unable as they are to produce children

wanted or unwanted, are model parents—model citizens re-

ally—so have no need for marriage. Heterosexuals get drunk

and pregnant, producing unwanted children; their reward is

to be allowed to marry. Homosexual couples do not produce

20 Nos. 14-2386 to 14-2388, 14-2526

unwanted children; their reward is to be denied the right to

marry. Go figure.

Which brings us to Indiana’s weakest defense of its dis-

tinction among different types of infertile couple: its as-

sumption that same-sex marriage cannot contribute to alle-

viating the problem of “accidental births,” which the state

contends is the sole governmental interest in marriage. Sup-

pose the consequences of accidental births are indeed the

state’s sole reason for giving marriage a legal status. In ad-

vancing this as the reason to forbid same-sex marriage, Indi-

ana has ignored adoption—an extraordinary oversight. Un-

intentional offspring are the children most likely to be put

up for adoption, and if not adopted, to end up in a foster

home. Accidental pregnancies are the major source of un-

wanted children, and unwanted children are a major prob-

lem for society, which is doubtless the reason homosexuals

are permitted to adopt in most states—including Indiana

and Wisconsin.

It’s been estimated that more than 200,000 American

children (some 3000 in Indiana and about the same number

in Wisconsin) are being raised by homosexuals, mainly ho-

mosexual couples. Gary J. Gates, “LGBT Parenting in the

United States” 3 (Williams Institute, UCLA School of Law,

Feb. 2013), http://williamsinstitute.law.ucla.edu/wp-content/

uploads/lgbt-parenting.pdf; Gates, “Same-Sex Couples in

Indiana: A Demographic Summary” (Williams Institute,

UCLA School of Law, 2014), http://williamsinstitute.law.uc

la.edu/wp-content/uploads/IN-same-sex-couples-demo-aug-

2014.pdf; Gates, “Same-Sex Couples in Wisconsin: A Demo-

graphic Survey” (Williams Institute, UCLA School of Law,

Aug. 2014), http://williamsinstitute.law.ucla.edu/wp-conte

Nos. 14-2386 to 14-2388, 14-2526 21

nt/uploads/WI-same-sex-couples-demo-aug-2014.pdf. Gary

Gates’s demographic surveys find that among couples who

have children, homosexual couples are five times as likely to

be raising an adopted child as heterosexual couples in Indi-

ana, and two and a half times as likely as heterosexual cou-

ples in Wisconsin.

If the fact that a child’s parents are married enhances the

child’s prospects for a happy and successful life, as Indiana

believes not without reason, this should be true whether the

child’s parents are natural or adoptive. The state’s lawyers

tell us that “the point of marriage’s associated benefits and

protections is to encourage child-rearing environments

where parents care for their biological children in tandem.”

Why the qualifier “biological”? The state recognizes that

family is about raising children and not just about producing

them. It does not explain why the “point of marriage’s asso-

ciated benefits and protections” is inapplicable to a couple’s

adopted as distinct from biological children.

Married homosexuals are more likely to want to adopt

than unmarried ones if only because of the many state and

federal benefits to which married people are entitled. And so

same-sex marriage improves the prospects of unintended

children by increasing the number and resources of prospec-

tive adopters. Notably, same-sex couples are more likely to

adopt foster children than opposite-sex couples are. Gates,

“LGBT Parenting in the United States,” supra, at 3. As of

2011, there were some 400,000 American children in foster

care, of whom 10,800 were in Indiana and about 6500 in

Wisconsin. U.S. Dept. of Health & Human Services, Chil-

dren’s Bureau, “How Many Children Are in Foster Care in

22 Nos. 14-2386 to 14-2388, 14-2526

the U.S.? In My State?” www.acf.hhs.gov/programs/cb/faq/

foster-care4.

Also, the more willing adopters there are, not only the

fewer children there will be in foster care or being raised by

single mothers but also the fewer abortions there will be.

Carrying a baby to term and putting the baby up for adop-

tion is an alternative to abortion for a pregnant woman who

thinks that as a single mother she could not cope with the

baby. The pro-life community recognizes this. See, e.g., Stu-

dents for Life of America, “Adoption, Another Option,”

http://studentsforlife.org/resources/organize-an-event/adopt

ion: “There may be times when a mother facing an un-

planned pregnancy may feel completely unequipped to par-

ent her child. She may feel her only option is to kill her pre-

born child. Pro-life individuals touch lives by helping wom-

en place their baby or child for adoption. It is important to

show women on your campus that adoption can be the answer to

all of her fears” (emphasis in original).

Consider now the emotional comfort that having married

parents is likely to provide to children adopted by same-sex

couples. Suppose such a child comes home from school one

day and reports to his parents that all his classmates have a

mom and a dad, while he has two moms (or two dads, as the

case may be). Children, being natural conformists, tend to be

upset upon discovering that they’re not in step with their

peers. If a child’s same-sex parents are married, however,

the parents can tell the child truthfully that an adult is per-

mitted to marry a person of the opposite sex, or if the adult

prefers as some do a person of his or her own sex, but that

either way the parents are married and therefore the child

can feel secure in being the child of a married couple. Con-

Nos. 14-2386 to 14-2388, 14-2526 23

versely, imagine the parents having to tell their child that

same-sex couples can’t marry, and so the child is not the

child of a married couple, unlike his classmates.

Indiana permits joint adoption by homosexuals (Wiscon-

sin does not). But an unmarried homosexual couple is less

stable than a married one, or so at least the state’s insistence

that marriage is better for children implies. If marriage is

better for children who are being brought up by their biolog-

ical parents, it must be better for children who are being

brought up by their adoptive parents. The state should want

homosexual couples who adopt children—as, to repeat, they

are permitted to do—to be married, if it is serious in arguing

that the only governmental interest in marriage derives from

the problem of accidental births. (We doubt that it is seri-

ous.)

The state’s claim that conventional marriage is the solu-

tion to that problem is belied by the state’s experience with

births out of wedlock. Accidental pregnancies are found

among married couples as well as unmarried couples, and

among individuals who are not in a committed relationship

and have sexual intercourse that results in an unintended

pregnancy. But the state believes that married couples are

less likely to abandon a child of the marriage even if the

child’s birth was unintended. So if the state’s policy of trying

to channel procreative sex into marriage were succeeding,

we would expect a drop in the percentage of children born

to an unmarried woman, or at least not an increase in that

percentage. Yet in fact that percentage has been rising even

since Indiana in 1997 reenacted its prohibition of same-sex

marriage (thus underscoring its determined opposition to

such marriage) and for the first time declared that it would

24 Nos. 14-2386 to 14-2388, 14-2526

not recognize same-sex marriages contracted in other states

or abroad. The legislature was fearful that Hoosier homo-

sexuals would flock to Hawaii to get married, for in 1996 the

Hawaii courts appeared to be moving toward invalidating

the state’s ban on same-sex marriage, though as things

turned out Hawaii did not authorize such marriage until

2013.

In 1997, the year of the enactment, 33 percent of births in

Indiana were to unmarried women; in 2012 (the latest year

for which we have statistics) the percentage was 43 percent.

The corresponding figures for Wisconsin are 28 percent and

37 percent and for the nation as a whole 32 percent and 41

percent. (The source of all these data is Kids Count Data

Center, “Births to Unmarried Women,” http://datacenter.

kidscount.org/data/tables/7-births-to-unmarried-women#det

ailed/2/16,51/false/868,867,133,38,35/any/257,258.) There is no

indication that these states’ laws, ostensibly aimed at chan-

neling procreation into marriage, have had any such effect.

A degree of arbitrariness is inherent in government regu-

lation, but when there is no justification for government’s

treating a traditionally discriminated-against group signifi-

cantly worse than the dominant group in the society, doing

so denies equal protection of the laws. One wouldn’t know,

reading Wisconsin’s brief, that there is or ever has been dis-

crimination against homosexuals anywhere in the United

States. The state either is oblivious to, or thinks irrelevant,

that until quite recently homosexuality was anathematized

by the vast majority of heterosexuals (which means, the vast

majority of the American people), including by most Ameri-

cans who were otherwise quite liberal. Homosexuals had, as

homosexuals, no rights; homosexual sex was criminal

Nos. 14-2386 to 14-2388, 14-2526 25

(though rarely prosecuted); homosexuals were formally

banned from the armed forces and many other types of gov-

ernment work (though again enforcement was sporadic);

and there were no laws prohibiting employment discrimina-

tion against homosexuals. Because homosexuality is more

easily concealed than race, homosexuals did not experience

the same economic and educational discrimination, and pub-

lic humiliation, that African-Americans experienced. But to

avoid discrimination and ostracism they had to conceal their

homosexuality and so were reluctant to participate openly in

homosexual relationships or reveal their homosexuality to

the heterosexuals with whom they associated. Most of them

stayed “in the closet.” Same-sex marriage was out of the

question, even though interracial marriage was legal in most

states. Although discrimination against homosexuals has

diminished greatly, it remains widespread. It persists in

statutory form in Indiana and in Wisconsin’s constitution.

At the very least, “a [discriminatory] law must bear a ra-

tional relationship to a legitimate governmental purpose.”

Romer v. Evans, supra, 517 U.S. at 635. Indiana’s ban flunks

this undemanding test.

Wisconsin’s prohibition of same-sex marriage, to which

we now turn, is found in a 2006 amendment to the state’s

constitution. The amendment, Article XIII, § 13, provides:

“Only a marriage between one man and one woman shall be

valid or recognized as a marriage in this state. A legal status

identical or substantially similar to that of marriage for un-

married individuals shall not be valid or recognized in this

state.” Opponents of same-sex marriage in Indiana have

tried for a number of years to insert a prohibition of such

marriages into the state’s constitution, as yet without suc-

26 Nos. 14-2386 to 14-2388, 14-2526

cess. A number of large businesses in Indiana oppose such a

constitutional amendment. With 19 states having authorized

same-sex marriage, the businesses may feel that it’s only a

matter of time before Indiana joins the bandwagon, and that

a constitutional amendment would impede the process—

and also would signal to Indiana’s gay and lesbian citizens,

some of whom are employees of these businesses, that they

are in a very unwelcoming environment, with statutory re-

form blocked. (On the attitude of business in Indiana and

Wisconsin to same-sex marriage, see, e.g., Nick Halter, “Tar-

get Files Court Papers Supporting Same-Sex Marriage in

Wisconsin and Indiana,” Aug. 5, 2014, www.bizjournals.com

/twincities/news/2014/08/05/target-amicus-same-sex-marriag

e-wisconsin-indiana.html.)

Wisconsin’s brief in defense of its prohibition of same-sex

marriage adopts Indiana’s ground (“accidental births”) but

does not amplify it. Its “accidental births” rationale for pro-

hibiting same-sex marriage is, like Indiana’s, undermined by

a “first cousin” exemption—but, as a statutory matter at

least, an even broader one: “No marriage shall be contracted

… between persons who are nearer of kin than 2nd cousins

except that marriage may be contracted between first cous-

ins where the female has attained the age of 55 years or

where either party, at the time of application for a marriage

license, submits an affidavit signed by a physician stating

that either party is permanently sterile.” Wis. Stat. § 65.03(1).

Indiana’s marriage law, as we know, authorizes first-cousin

marriages if both cousins are at least 65 years old. But—and

here’s the kicker—Indiana apparently will as a matter of

comity recognize any marriage lawful where contracted, in-

cluding therefore (as an Indiana court has held) marriages of

first cousins contracted in Tennessee, a state that places no

Nos. 14-2386 to 14-2388, 14-2526 27

restrictions on such marriages. See Tenn. Code Ann. § 36-3-

101; Mason v. Mason, 775 N.E.2d 706, 709 (Ind. App. 2002).

Indiana has not tried to explain to us the logic of recognizing

marriages of fertile first cousins (prohibited in Indiana) that

happen to be contracted in states that permit such marriages,

but of refusing, by virtue of the 1997 amendment, to recog-

nize same-sex marriages (also prohibited in Indiana) con-

tracted in states that permit them. This suggests animus

against same-sex marriage, as is further suggested by the

state’s inability to make a plausible argument for its refusal

to recognize same-sex marriage.

But back to Wisconsin, which makes four arguments of

its own against such marriage: First, limiting marriage to

heterosexuals is traditional and tradition is a valid basis for

limiting legal rights. Second, the consequences of allowing

same-sex marriage cannot be foreseen and therefore a state

should be permitted to move cautiously—that is, to do noth-

ing, for Wisconsin does not suggest that it plans to take any

steps in the direction of eventually authorizing such mar-

riage. Third, the decision whether to permit or forbid same-

sex marriage should be left to the democratic process, that is,

to the legislature and the electorate. And fourth, same-sex

marriage is analogous in its effects to no-fault divorce,

which, the state argues, makes marriage fragile and unrelia-

ble—though of course Wisconsin has no-fault divorce, and

it’s surprising that the state’s assistant attorney general, who

argued the state’s appeal, would trash his own state’s law.

The contention, built on the analogy to no-fault divorce and

sensibly dropped in the state’s briefs in this court—but the

assistant attorney general could not resist resuscitating it at

the oral argument—is that, as the state had put it in submis-

sions to the district court, allowing same-sex marriage cre-

28 Nos. 14-2386 to 14-2388, 14-2526

ates a danger of “shifting the public understanding of mar-

riage away from a largely child-centric institution to an

adult-centric institution focused on emotion.” No evidence is

presented that same-sex marriage is on average less “child-

centric” and more emotional than an infertile marriage of

heterosexuals, or for that matter that no-fault divorce has

rendered marriage less “child-centric.”

The state’s argument from tradition runs head on into

Loving v. Virginia, 388 U.S. 1 (1967), since the limitation of

marriage to persons of the same race was traditional in a

number of states when the Supreme Court invalidated it.

Laws forbidding black-white marriage dated back to coloni-

al times and were found in northern as well as southern col-

onies and states. See Peggy Pascoe, What Comes Naturally:

Miscegenation Law and the Making of Race in America (2009).

Tradition per se has no positive or negative significance.

There are good traditions, bad traditions pilloried in such

famous literary stories as Franz Kafka’s “In the Penal Colo-

ny” and Shirley Jackson’s “The Lottery,” bad traditions that

are historical realities such as cannibalism, foot-binding, and

suttee, and traditions that from a public-policy standpoint

are neither good nor bad (such as trick-or-treating on Hal-

loween). Tradition per se therefore cannot be a lawful

ground for discrimination—regardless of the age of the tra-

dition. Holmes thought it “revolting to have no better reason

for a rule of law than that so it was laid down in the time of

Henry IV.” Oliver Wendell Holmes, Jr., “The Path of the

Law,” 10 Harv. L. Rev. 457, 469 (1897). Henry IV (the English

Henry IV, not the French one—Holmes presumably was re-

ferring to the former) died in 1413. Criticism of homosexuali-

ty is far older. In Leviticus 18:22 we read that “thou shalt not

lie with mankind, as with womankind: it is abomination.”

Nos. 14-2386 to 14-2388, 14-2526 29

The limitation on interracial marriage invalidated in Lov-

ing was in one respect less severe than Wisconsin’s law. It

did not forbid members of any racial group to marry, just to

marry a member of a different race. Members of different

races had in 1967, as before and since, abundant possibilities

for finding a suitable marriage partner of the same race. In

contrast, Wisconsin’s law, like Indiana’s, prevents a homo-

sexual from marrying any person with the same sexual ori-

entation, which is to say (with occasional exceptions) any

person a homosexual would want or be willing to marry.

Wisconsin points out that many venerable customs ap-

pear to rest on nothing more than tradition—one might even

say on mindless tradition. Why do men wear ties? Why do

people shake hands (thus spreading germs) or give a peck

on the cheek (ditto) when greeting a friend? Why does the

President at Thanksgiving spare a brace of turkeys (two out

of the more than 40 million turkeys killed for Thanksgiving

dinners) from the butcher’s knife? But these traditions, while

to the fastidious they may seem silly, are at least harmless. If

no social benefit is conferred by a tradition and it is written

into law and it discriminates against a number of people and

does them harm beyond just offending them, it is not just a

harmless anachronism; it is a violation of the equal protec-

tion clause, as in Loving. See 388 U.S. at 8–12.

Against this the state argues in its opening brief that Lov-

ing “should be read as recognizing the constitutional re-

strictions on the government’s ability to infringe the freedom

of individuals to decide for themselves how to arrange their

own private and domestic affairs.” But that sounds just like

what the government of Wisconsin has done: told homosex-

uals that they are forbidden to decide for themselves how to

30 Nos. 14-2386 to 14-2388, 14-2526

arrange their private and domestic affairs. If they want to

marry, they have to marry a person of the opposite sex.

The state elaborates its argument from the wonders of

tradition by asserting, again in its opening brief, that “thou-

sands of years of collective experience has [sic] established

traditional marriage, between one man and one woman, as

optimal for the family, society, and civilization.” No evi-

dence in support of the claim of optimality is offered, and

there is no acknowledgment that a number of countries

permit polygamy—Syria, Yemen, Iraq, Iran, Egypt, Sudan,

Morocco, and Algeria—and that it flourishes in many Afri-

can countries that do not actually authorize it, as well as in

parts of Utah. (Indeed it’s been said that “polygyny, where-

by a man can have multiple wives, is the marriage form

found in more places and at more times than any other.”

Stephanie Coontz, Marriage, a History: How Love Conquered

Marriage 10 (2006).) But suppose the assertion is correct.

How does that bear on same-sex marriage? Does Wisconsin

want to push homosexuals to marry persons of the opposite

sex because opposite-sex marriage is “optimal”? Does it

think that allowing same-sex marriage will cause heterosex-

uals to convert to homosexuality? Efforts to convert homo-

sexuals to heterosexuality have been a bust; is the opposite

conversion more feasible?

Arguments from tradition must be distinguished from

arguments based on morals. Many unquestioned laws are

founded on moral principles that cannot be reduced to cost-

benefit analysis. Laws forbidding gratuitous cruelty to ani-

mals, and laws providing public assistance for poor and dis-

abled persons, are examples. There is widespread moral op-

position to homosexuality. The opponents are entitled to

Nos. 14-2386 to 14-2388, 14-2526 31

their opinion. But neither Indiana nor Wisconsin make a

moral argument against permitting same-sex marriage.

The state’s second argument is: “go slow”: maintaining

the prohibition of same-sex marriage is the “prudent, cau-

tious approach,” and the state should therefore be allowed

“to act deliberately and with prudence—or, at the very least,

to gather sufficient information—before transforming this

cornerstone of civilization and society.” There is no sugges-

tion that the state has any interest in gathering information,

for notice the assumption in the quoted passage that the

state already knows that allowing same-sex marriage would

transform a “cornerstone of civilization and society,” namely

monogamous heterosexual marriage. One would expect the

state to have provided some evidence, some reason to believe,

however speculative and tenuous, that allowing same-sex

marriage will or may “transform” marriage. At the oral ar-

gument the state’s lawyer conceded that he had no

knowledge of any study underway to determine the possible

effects on heterosexual marriage in Wisconsin of allowing

same-sex marriage. He did say that same-sex marriage might

somehow devalue marriage, thus making it less attractive to

opposite-sex couples. But he quickly acknowledged that he

hadn’t studied how same-sex marriage might harm marriage

for heterosexuals and wasn’t prepared to argue the point.

Massachusetts, the first state to legalize same-sex marriage,

did so a decade ago. Has heterosexual marriage in Massa-

chusetts been “transformed”? Wisconsin’s lawyer didn’t

suggest it has been.

He may have been gesturing toward the concern ex-

pressed by some that same-sex marriage is likely to cause

the heterosexual marriage rate to decline because heterosex-

32 Nos. 14-2386 to 14-2388, 14-2526

uals who are hostile to homosexuals, or who whether hostile

to them or not think that allowing them to marry degrades

the institution of marriage (as might happen if people were

allowed to marry their pets or their sports cars), might de-

cide not to marry. Yet the only study that we’ve discovered,

a reputable statistical study, finds that allowing same-sex

marriage has no effect on the heterosexual marriage rate.

Marcus Dillender, “The Death of Marriage? The Effects of

New Forms of Legal Recognition on Marriage Rates in the

United States,” 51 Demography 563 (2014). No doubt there are

more persons more violently opposed to same-sex marriage

in states that have not yet permitted it than in states that

have, yet in all states there are opponents of same-sex mar-

riage. But they would tend also to be the citizens of the state

who were most committed to heterosexual marriage (devout

Catholics, for example).

No one knows exactly how many Americans are homo-

sexual. Estimates vary from about 1.5 percent to about 4 per-

cent. The estimate for Wisconsin is 2.8 percent, which in-

cludes bisexual and transgendered persons. Gary J. Gates &

Frank Newport, “LGBT Percentage Highest in D.C., Lowest

in North Dakota,” Gallup (Feb. 15, 2013), www.gallup.com/

poll/160517/lgbt-percentage-highest-lowest-north-dakota.as

px. Given how small the percentage is, it is sufficiently im-

plausible that allowing same-sex marriage would cause pal-

pable harm to family, society, or civilization to require the

state to tender evidence justifying its fears; it has provided

none.

The state falls back on Justice Alito’s statement in dissent

in United States v. Windsor, supra, 133 S. Ct. at 2716, that “at

present, no one—including social scientists, philosophers,

Nos. 14-2386 to 14-2388, 14-2526 33

and historians—can predict with any certainty what the

long-term ramifications of widespread acceptance of same-

sex marriage will be. And judges are certainly not equipped

to make such an assessment.” What follows, if prediction is

impossible? Justice Alito thought what follows is that the

Supreme Court should not interfere with Congress’s deter-

mination in the Defense of Marriage Act that “marriage,” for

purposes of entitlement to federal marital benefits, excludes

same-sex marriage even if lawful under state law. But can

the “long-term ramifications” of any constitutional decision

be predicted with certainty at the time the decision is ren-

dered?

The state does not mention Justice Alito’s invocation of a

moral case against same-sex marriage, when he states in his

dissent that “others explain the basis for the institution in

more philosophical terms. They argue that marriage is essen-

tially the solemnizing of a comprehensive, exclusive, perma-

nent union that is intrinsically ordered to producing new

life, even if it does not always do so.” Id. at 2718. That is a

moral argument for limiting marriage to heterosexuals. The

state does not mention the argument because as we said it

mounts no moral arguments against same-sex marriage.

We know that many people want to enter into a same-sex

marriage (there are millions of homosexual Americans,

though of course not all of them want to marry), and that

forbidding them to do so imposes a heavy cost, financial and

emotional, on them and their children. What Wisconsin has

not told us is whether any heterosexuals have been harmed

by same-sex marriage. Obviously many people are dis-

tressed by the idea or reality of such marriage; otherwise

these two cases wouldn’t be here. But there is a difference,

34 Nos. 14-2386 to 14-2388, 14-2526

famously emphasized by John Stuart Mill in On Liberty

(1869), between the distress that is caused by an assault, or a

theft of property, or an invasion of privacy, or for that matter

discrimination, and the distress that is caused by behavior

that disgusts some people but does no (other) harm to them.

Mill argued that neither law (government regulation) nor

morality (condemnation by public opinion) has any proper

concern with acts that, unlike a punch in the nose, inflict no

temporal harm on another person without consent or justifi-

cation. The qualification temporal is key. To be the basis of

legal or moral concern, Mill argued, the harm must be tangi-

ble, secular, material—physical or financial, or, if emotional,

focused and direct—rather than moral or spiritual. Mill illus-

trated nontemporal harm with revulsion against polygamy

in Utah (he was writing before Utah agreed, as a condition of

being admitted to the union as a state, to amend its constitu-

tion to prohibit polygamy). The English people were fiercely

critical of polygamy wherever it occurred. As they were enti-

tled to be. But there was no way polygamy in Utah could

have adverse effects in England, 4000 miles away. Mill

didn’t think that polygamy, however offensive, was a proper

political concern of England.

Similarly, while many heterosexuals (though in America

a rapidly diminishing number) disapprove of same-sex mar-

riage, there is no way they are going to be hurt by it in a way

that the law would take cognizance of. Wisconsin doesn’t

argue otherwise. Many people strongly disapproved of in-

terracial marriage, and, more to the point, many people

strongly disapproved (and still strongly disapprove) of ho-

mosexual sex, yet Loving v. Virginia invalidated state laws

banning interracial marriage, and Lawrence v. Texas invali-

dated state laws banning homosexual sex acts.

Nos. 14-2386 to 14-2388, 14-2526 35

Though these decisions are in the spirit of Mill, Mill is

not the last word on public morality. But Wisconsin like In-

diana does not base its prohibition of same-sex marriage on

morality, perhaps because it believes plausibly that Lawrence

rules out moral objections to homosexuality as legitimate

grounds for discrimination.

In passing, Wisconsin in its opening brief notes that it

“recogniz[es] domestic partnerships.” Indeed it does: Wis.

Stat. ch. 770. And the domestic partners must be of the same

sex. Id., § 770.05(5). But the preamble to the statute states:

“The legislature … finds that the legal status of domestic

partnership as established in this chapter is not substantially

similar to that of marriage,” § 770.001, citing for this proposi-

tion a decision by a Wisconsin intermediate appellate court.

Appling v. Doyle, 826 N.W.2d 666 (Wis. App. 2012), affirmed,

2014 WI 96 (Wis. July 31, 2014). Indeed that is what the court

held. It pointed out that chapter 770 doesn’t specify the

rights and obligations of the parties to a domestic partner-

ship. Rather you must go to provisions specifying the rights

and obligations of married persons and see whether a provi-

sion that you’re concerned with is made expressly applicable

to domestic partnerships, as is for example the provision that

gives a surviving spouse the deceased spouse’s interest in

their home. 826 N.W.2d at 668. But as the court further ex-

plained, the rights and obligations of domestic partners are

far more limited than those of married persons. See id. at

682–86. (For example, only spouses may jointly adopt a

child. Id. at 685.) They have to be far more limited, because of

the state’s constitutional provision quoted above that “a le-

gal status identical or substantially similar to that of mar-

riage for unmarried individuals shall not be valid or recog-

36 Nos. 14-2386 to 14-2388, 14-2526

nized.” Wis. Const. Art. XIII, § 13. Domestic partnership in

Wisconsin is not and cannot be marriage by another name.

It is true that because the state does not regard same-sex

marriages contracted in other states as wholly void (though

they are not “recognized” in Wisconsin), citizens of Wiscon-

sin who contract same-sex marriages in states in which such

marriages are legal are not debarred from receiving some of

the federal benefits to which legally married persons (in-

cluding parties to a same-sex marriage) are entitled. Not to

all those benefits, however, because a number of them are

limited by federal law to persons who reside in a state in

which their marriages are recognized. These include benefits

under the Family & Medical Leave Act, see 29 C.F.R.

§ 825.122(b), and access to a spouse’s social security benefits.

See 42 U.S.C. § 416(h)(1)(A)(i).

So look what the state has done: it has thrown a crumb to

same-sex couples, denying them not only many of the rights

and many of the benefits of marriage but also of course the

name. Imagine if in the 1960s the states that forbade interra-

cial marriage had said to interracial couples: “you can have

domestic partnerships that create the identical rights and ob-

ligations of marriage, but you can call them only ‘civil un-

ions’ or ‘domestic partnerships.’ The term ‘marriage’ is re-

served for same-race unions.” This would give interracial

couples much more than Wisconsin’s domestic partnership

statute gives same-sex couples. Yet withholding the term

“marriage” would be considered deeply offensive, and, hav-

ing no justification other than bigotry, would be invalidated

as a denial of equal protection.

The most arbitrary feature of Wisconsin’s treatment of

same-sex couples is its refusal to allow couples in domestic

Nos. 14-2386 to 14-2388, 14-2526 37

partnerships to adopt jointly, as married heterosexual cou-

ples are allowed to do (and in Indiana, even unmarried

ones). The refusal harms the children, by telling them they

don’t have two parents, like other children, and harms the

parent who is not the adoptive parent by depriving him or

her of the legal status of a parent. The state offers no justifi-

cation.

Wisconsin’s remaining argument is that the ban on same-

sex marriage is the outcome of a democratic process—the

enactment of a constitutional ban by popular vote. But ho-

mosexuals are only a small part of the state’s population—

2.8 percent, we said, grouping transgendered and bisexual

persons with homosexuals. Minorities trampled on by the

democratic process have recourse to the courts; the recourse

is called constitutional law.

In its reply brief Indiana adopts Wisconsin’s democracy

argument, adding that “homosexuals are politically power-

ful out of proportion to their numbers.” No evidence is pre-

sented by the state to support this contention. It is true that

an increasing number of heterosexuals support same-sex

marriage; otherwise 11 states would not have changed their

laws to permit such marriage (the other 8 states that allow

same-sex marriage do so as a result of judicial decisions in-

validating the states’ bans). No inference of manipulation of

the democratic process by homosexuals can be drawn, how-

ever, any more than it could be inferred from the enactment

of civil rights laws that African-Americans “are politically

powerful out of proportion to their numbers.” It is to the

credit of American voters that they do not support only laws

that are in their palpable self-interest. They support laws

38 Nos. 14-2386 to 14-2388, 14-2526

punishing cruelty to animals, even though not a single ani-

mal has a vote.

To return to where we started in this opinion, 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 discrimi-

nation on the basis of sexual orientation. As we have been at

pains to explain, the grounds advanced by Indiana and Wis-

consin for their discriminatory policies are not only conjec-

tural; they are totally implausible.

For completeness we note the ultimate convergence of

our simplified four-step analysis with the more familiar, but

also more complex, approach found in many cases. In

SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471,

483 (9th Cir. 2014), the Ninth Circuit concluded, based on a

reading of the Supreme Court’s decisions in Lawrence and

Windsor, that statutes that discriminate on the basis of sexual

orientation are subject to “heightened scrutiny”—and in do-

ing so noted that Windsor, in invalidating the Defense of

Marriage Act, had balanced the Act’s harms and offsetting

benefits: “Notably absent from Windsor’s review of DOMA

are the ‘strong presumption’ in favor of the constitutionality

of laws and the ‘extremely deferential’ posture toward gov-

ernment action that are the marks of rational basis review. …

In its parting sentences, Windsor explicitly announces its bal-

ancing of the government’s interest against the harm or inju-

ry to gays and lesbians: ‘The federal statute is invalid, for no

legitimate purpose overcomes the purpose and effect to dis-

parage and injure those whom the State, by its marriage

laws, sought to protect in personhood and dignity.’ 133 S.

Nos. 14-2386 to 14-2388, 14-2526 39

Ct. at 2696 (emphasis added). Windsor’s balancing is not the

work of rational basis review.”

The Supreme Court also said in Windsor that “the Act’s

demonstrated purpose is to ensure that if any State decides

to recognize same-sex marriages, those unions will be treat-

ed as second-class marriages for purposes of federal law.”

133 S. Ct. at 2693–94. A second-class marriage would be a lot

better than the cohabitation to which Indiana and Wisconsin

have consigned same-sex couples.

The states’ concern with the problem of unwanted chil-

dren is valid and important, but their solution is not “tai-

lored” to the problem, because by denying marital rights to

same-sex couples it reduces the incentive of such couples to

adopt unwanted children and impairs the welfare of those

children who are adopted by such couples. The states’ solu-

tion is thus, in the familiar terminology of constitutional dis-

crimination law, “overinclusive.” It is also underinclusive, in

allowing infertile heterosexual couples to marry, but not

same-sex couples.

Before ending this long opinion we need to address,

though only very briefly, Wisconsin’s complaint about the

wording of the injunction entered by the district judge. Its

lawyers claim to fear the state’s being held in contempt be-

cause it doesn’t know what measures would satisfy the in-

junction’s command that all relevant state officials “treat

same-sex couples the same as different sex couples in the

context of processing a marriage license or determining the

rights, protections, obligations or benefits of marriage.” If

the state’s lawyers really find this command unclear, they

should ask the district judge for clarification. (They should

have done so already; they haven’t.) Better yet, they should

40 Nos. 14-2386 to 14-2388, 14-2526

draw up a plan of compliance and submit it to the judge for

approval.

The district court judgments invalidating and enjoining

these two states’ prohibitions of same-sex marriage are

AFFIRMED.