In it, but not of it. TPM DC
"The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination 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," Judge Richard Posner wrote for a unanimous three-judge panel.
The ruling makes it the third federal appeals court to conclude that state prohibitions on gay marriage violate the Constitution's guarantee of equal protection. Advocates for marriage equality have enjoyed many victories since the Supreme Court ruled in 2013 that the federal government may not deny equal benefits to legally married gay couples.
Posner, a Reagan appointee, said the cases were formally about "discrimination against the small homosexual minority" but "at a deeper level, as we shall see, they are about the welfare of American children."
"Our pair of cases is rich in detail but ultimately straightforward to decide," he wrote. "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 seriously."
The decision will be appealed by Wisconsin Attorney General J.B. Van Hollen, a Republican.
"The Attorney General has always believed that this case will ultimately be decided by the United States Supreme Court. The stay remains in effect until all appeals have been concluded," Dana Brueck, a spokesperson for the AG, said in an email.