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Saturday, December 27, 2014 |  Madison, WI: 34.0° F  Overcast
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Wisconsin couples watch as judges take aim at state's same-sex marriage ban
'It made me feel American again'
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Trampf, left, and Heyning traveled by bus to Chicago with other plaintiffs in the ACLU-Wisconsin lawsuit challenging the state's ban on same-sex marriage.
Credit:Carolyn Fath

The 7th Circuit Court of Appeals in Chicago sure knows how to milk courtroom drama.

The makeup of the judicial panels assigned to hear oral arguments is kept under wraps until 30 minutes before court is called to order. No photos or recording devices are allowed, and seating is first come, first served -- not even those who are parties to a lawsuit are guaranteed a space in the courtroom.

That's why Indiana journalist Mark Lee got to the Dirksen Federal Building on South Dearborn Street Tuesday at 3 a.m. -- more than six hours before oral arguments were set to begin on challenges to Wisconsin's and Indiana's same-sex marriage bans. John Becker, a native of Green Bay, arrived two hours later and was second in line.

Now a blogger and activist on LGBT issues in Washington, D.C., Becker was in college in Wisconsin when Wisconsin Family Action launched its statewide effort to ban same-sex marriage in the state constitution. Becker worked hard against the measure and was devastated when voters approved it by a large margin in November 2006.

"When it went through it felt like a kick in the gut," said Becker. Fast-forward to June 6, 2014, the day U.S. District Judge Barbara Crabb ruled the ban was unconstitutional: "To see the amendment fall was one of the most incredible moments of my life," said Becker, who married his husband in Canada just months before the 2006 vote on the state's marriage ban.

Wisconsin Attorney General J.B. Van Hollen appealed Crabb's decision, and the federal appeals court that covers Wisconsin, Indiana and Illinois combined the case with multiple challenges to Indiana's same-sex marriage ban.

Fast-tracking the case, the court scheduled oral arguments within about a month of Crabb's ruling.

Tuesday, the three-judge appellate panel seemed primed for battle, particularly Judge Richard Posner, who pounced on the lawyer representing Indiana Attorney General Gregory Zoeller within seconds of his opening arguments.

Indiana argued that the state's concern in marriage is intended to "channel" couples with the potential to procreate "into relationships that are durable and longstanding" for the benefit of children, particularly when there is an unplanned pregnancy.

Posner noted that many children who are the product of unintended pregnancy end up being adopted and that some 3,000 adopted children live with same-sex couples in Indiana.

"Don't you think it would help these children if their parents... were married?" Posner asked Indiana Solicitor General Thomas Fisher.

When Fisher declined to offer an opinion, Posner got testy.

"No, answer my question," he demanded. "Wouldn't these children want their parents to be married?"

"You permit homosexual couples to adopt, so they adopt," Posner pressed on. "Wouldn't it be better for these adopted children if their same-sex parents were married?"

"I don't feel like it's my job to answer that question," Fisher said.

Posner pushed Fisher -- unsuccessfully -- to list some tangible benefits associated with Indiana's same-sex marriage ban, and he continued that line of questioning when oral arguments began on Wisconsin's law prohibiting same-sex marriage.

Posner asked Wisconsin Assistant Attorney General Timothy Samuelson why the state puts "obstacles" in the path of same-sex parents who adopt children. When Samuelson responded that the state's same-sex marriage prohibition was based on "tradition," Posner was incredulous.

"How can tradition be a reason for anything?" Posner asked. "The tradition forbidding interracial marriage went back to colonial times. It was 200 years old by the time Loving came along," he added, referring to the 1967 Supreme Court decision that invalidated laws prohibiting interracial marriage.

"What is the rational basis for a legislative choice denying same-sex marriage?" Posner asked again.

"These people and their adopted children are harmed by your law," continued Posner. "What is the offsetting benefit to your law? ...Who is being helped by this law, if anyone?"

Samuelson noted the yellow light was on indicating his time was up.

"May I respond?" he asked Posner.

"It won't save you," interjected Judge Ann Claire Williams, who also sat on the panel with Judge David Hamilton.

"It was worth a shot, wasn't it?" Samuelson asked.

'Full citizens'

Katy Heyning and Judi Trampf emerged from the courtroom still visibly moved.

"It was an amazing thing to be able to witness that," said Heyning.

They said they teared up when they heard the judges talk favorably about same-sex families and the need for equal protection under the law. "It made me feel American again," said Trampf. "That we are full citizens in this country."

Heyning said she felt like singing "On, Wisconsin" on the way down on the elevator but refrained.

Heyning and Trampf, who have been together for 25 years, live in Madison and commute to UW-Whitewater where they both work in administration. On Monday, they joined some of the other eight plaintiff couples on a chartered bus to Chicago, making stops in Madison, Milwaukee and Racine. Monday evening, they rallied with plaintiffs in the Indiana case and supporters across from the federal appeals court building.

On Tuesday morning they lined up early with others in the hallway outside the courtroom hoping to get in.

Charvonne Kemp and Marie Carlson of Milwaukee were right behind them. Partners for seven years, they are also plaintiffs in the ACLU-Wisconsin lawsuit.

Kemp said neither she nor Carlson could sleep the night before in anticipation of seeing history in the making.

The couple had started planning a wedding in Illinois when approached to become party to the lawsuit. They called it off and are now waiting for marriage to be legal in Wisconsin. "This could really happen in our lifetime," said Kemp.

Also in line Tuesday morning was Scott Spychala of Indianapolis, who is president of American Veterans for Equal Rights. Spychala, a retired member of the Air National Guard, wore his uniform.

"I'm a single male, but when I do find 'him' I want to be able to marry him," he said.

When Heyning, 51, and Trampf, 53, were approached about joining the lawsuit, they did not bite immediately. But they didn't mull it over for too long.

"Our personalities are such that we are comfortable with who we are," said Heyning. "We're at a good point in our life to do this. Living on the east side of Madison, it's easy to be out and gay. If you live in rural Wisconsin, it's really hard."

They said they were prepared for public scrutiny and potential backlash, but have received nothing but support from friends, family and strangers. When the couple stopped at the Oasis bus stop on the way back from Chicago Tuesday, a woman approached Heyning, who was wearing a T-shirt that said, "Keep calm and marry on."

"Can I give you a hug?" the woman asked.

It turned out she and her partner of 25 years had married in Wisconsin during the brief window in July before Crabb's ruling was stayed, when about 500 same-sex couples tied the knot in Wisconsin.

Heyning said she choked up again. "They said 'thank you.'"

'Real harms'

Julaine Appling, executive director of Wisconsin Family Action, also made it down to Chicago for the oral arguments.

She said she might have given a different answer than Samuelson did when drilled by Posner on the reasons for Wisconsin's same-sex marriage ban.

"I do think we have to be really aware that there are real harms when it comes to redefining marriage," she said. "There is a biological reality. Every child ever born has a mother and father. In a sense they have a right to be brought up in the homes of their married moms and fathers."

She said those pushing for redefining marriage are trying to "further deconstruct this nuclear institution... and it will have consequences."

She said gender is not irrelevant and that mothers and fathers parent differently. Appling said the high rate of fatherlessness in Milwaukee, for instance, has taken a toll. "I don't know about you, but I wake up in the morning and I hear reports about murders. We have young men with no direction, no discipline in their lives, and a lot of that is due to fatherlessness."

"What we are talking about here is not what is in the best interests of the children," she added. "It's what adults want."

Van Hollen released a statement after the oral arguments noting that his "duty to support and defend the Constitution" is not limited. He also said he was increasingly concerned about the federal government encroaching on state powers.

"All laws governing domestic relations, whether they are laws concerning marriage or divorce or child custody, have been traditionally left to the states. Wisconsin's laws defining marriage should be given the same respect and deference," Van Hollen said.

ACLU-Wisconsin attorney Larry Dupuis was pleased with the tenor of the court hearing. "Well, that went well," he said in the lobby of the courthouse.

Dupuis said there is no way to predict how long the appeals court will take to issue a decision, though two to three months is the norm. Given the heightened interest in the legal status of same-sex marriage across the country, however, it could come faster than that.

Whichever side loses will almost certainly appeal to the U.S. Supreme Court; two other petitions from other federal jurisdictions on similar challenges to state marriage bans have already been submitted to the high court.

The earliest the court could take the case would be in October, after its summer break, said Dupuis. But it continues to take cases well into December.

"I think they will want to settle it," said Dupuis. "But they may not settle it fast. They may wait until the end of the year."

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