Since last summer -- when the Supreme Court in United States v. Windsor required the federal government to recognize same-sex marriages -- advocates have successfully challenged many states' bans against same-sex marriage. These challenges have swept through the federal district courts across the country, and are now working their way through the U.S. Circuit Courts of Appeals. Several of these courts have already held that states cannot deny same-sex couples the right to marry, including the 10th Circuit and the 4th Circuit.
Late last month, the 7th Circuit took its turn hearing oral arguments on the constitutionality of same-sex marriage bans after consolidating cases against Indiana's and Wisconsin's bans. The panel included Judges Posner, Williams and Hamilton.
The arguments made before the 7th Circuit were the same arguments made in other federal courts, centering on whether denying same-sex marriage is a violation of the 14th Amendment's due process and equal protection clauses. The same-sex couples in the 7th Circuit argued that Indiana and Wisconsin were violating these constitutional provisions by regulating marriage in a way that prevented them from getting married.
Meanwhile, Indiana supported its same-sex marriage ban by arguing that marriage is an incentive for people who unexpectedly conceived a child -- a man and a woman by definition -- to get married. Wisconsin's argument deferred to tradition and the state legislature to determine the issue.
In addition to addressing these constitutional points in oral arguments, the 7th Circuit judges expressed concern for the children of same-sex couples. Judge Posner wondered why Indiana and Wisconsin decided to withhold from these children the benefits of having married parents.
Once the 7th Circuit announces its decision on same-sex marriage, the next stage in the appeals process is the United States Supreme Court. The Supreme Court may decide to hear a same-sex marriage case, especially if one of the Circuit Courts upholds a state's ban and causes a circuit split. As the federal questions underlying these cases are the same, federal law ought to reach a consistent position on whether states may constitutionally ban same-sex marriage.