### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No s
. 14

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- 2388 M ARILYN R AE B ASKIN , et al. , Plaintiff s

- Appellees , v. P ENNY B OGAN , et al. , Defendant s

- Appell ant s
.

____________________ Appeal s from t he United States District Court for the Southern District of Indiana , Indianapolis Division

.

No s
. 1:14

- cv - 00 355

- RLY

- TAB , 1:14

- cv - 00404

- RLY

- TAB, 1:14

- cv - 00406

- RLY

- MJD

— Richard L. Young , Chief Judge

.

____________________

No. 14

- 2526 V IRGINIA W OLF , et al. , Plaintiffs

- App ellees , v. S COTT W ALKER , et al. , Defendants

- Appell ants

.

____________________ Appeal from t he United States District Court for the Western District of Wisconsin

. No. 3:14

- cv - 00064

- bbc

— Barbara B. Crabb , Judge

.

______________________2 No s
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A RGUED A UGUST 26 , 201 4

— D ECIDED S EPTEMBER 4, 2014

____________________ Before P OSNER , W ILLIAMS , and H AMILTON , Circuit Judges

. P OSNER , Circuit Judge

. Indiana and Wisconsin are among the shrinking majority of states that do not recognize the v alidity of same

- sex marriages, wheth er contracted in these states or in states (or foreign countries) where they are la wful. The states have appealed from district court dec i sions invalidating the state s’ laws that ordain such r e fusal. Formally these cases are about discrimination against th e 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 har dest in defense of their prohibition of same

- sex marriage is that the only reas on government encourages marriage is to induce heterosexuals to marry so that there will be fewer

“ accidental births ,” which when they occur outside of ma rriage often lead to abandonment of the child to the mother (unaided by the father) or to foster care. Ove r looked by this argument is that many of those abandoned children are adopted by homosexual couples, and those chi l dren would be better off both emotionally and economically if their adoptive parents were ma r ried

. We are mindful of the Supreme Court’s insistence that

“ whether embodied in the Fourteenth Amendment or i nferred from the Fifth, equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. In areas of s o cial and economic policy, a statutory class ification that neither proceeds along suspect lines nor i nfringes fundamental constit u tional rights must be upheldNo s
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against equal protection challenge if there is any reasonably conceivable state of facts that could provide a r a tional basis for the classifi cation.” FCC v. Beach Comm u nications, Inc ., 508 U.S. 307, 313 (1993) (emphasis added). The phrase we’ve ita licized is the exception applicable to this pair of cases

. We hasten to add that even when the group discrimi na ted 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 (198 5) . 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 d evoted 17 pages to analyzing whether Congress had had a “rea sonable basis” for the challenged discrimination (requi ring foreign service officers but not ordinary civil se r vants to retire at the age of 60) , before conclu d ing that it did

. We’ll see that the governments of Indiana and Wisconsin have given us no reason to think they have a “reasonable b asis” for forbidding same

- sex marriage. And more than a re asonable basis is required because this is a case in which the challenged discrimination is, in the formula from the Beach case, “along suspect lines.” D iscriminat ion by a state or the federal government against a minority, when based on an immutable characteristic o f the members of that minority ( most familiarly skin color and gender ), and occurring against a n hi s torical background of discrimination against the per sons who have that characteristic , makes the discri minatory law or policy constitutionally suspect . See , e.g., Bo wen v. Gilliard , 483 U.S. 587, 602

– 03 (1987); Regents of Un i versity4 No s
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of California v. Bakke , 438 U.S. 265, 360

– 62 (1978) ; St. John’s United Chur ch 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); Ga l lagher v. City of Clayton , 699 F.3d 1013, 1018

– 19 (8th Cir. 2012 ). These circu m stances create a presumption that the discrimination is a denial of the equal prote c tion of the laws (it may violate other provisions of the Co n stitution 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 d iscrimination 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 do c trinal terminol ogy

— the terminology of rational basis , of strict , heightened , and intermediate scrutiny, of narrow ta i loring , fundamental rights, and the rest

. We’ll be invoking in places the conceptual appar atus that has grown up around this terminology , but our main focus will be on the states’ arg uments, which are based largely on the assertion that banning
same
- sex marriage is justified by the state’s interest in cha nneling procreative sex into (necessaril y heterosexual) ma rriage. We will engage the states’ arguments on their own terms, en a bling us to decide our brace of cases on the basis of a sequence of four que s tions : 1. Does the challenged practice involve discrimination , rooted in a history of prejudi ce, against some identifiable group of persons, resulting in u n equal treatment harmful to them ?No s
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2. Is the unequal treatment based on some immutable or at least tenacious characteris tic of the people discriminated against ( biological, such as skin color, or a deep psycholog ical 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 pers on’s ability to participate in society. Intellect , for example, has a large immutable comp onent but also a direct and substantial bearing on qualification s for certain types of employment and for legal privileges such as entitlement to a driver’s l icense , and there may be no reason to be particularly susp icious of a statute that classifies on that b a sis. 3

. D oes the discrimination , even if based on an immut able characteristic, nevertheless confer a n important offsetting benefit on society as a whole ? Age is an immutable chara cteristic, but a rule prohibiting persons over 70 to pilot airli ners might reasonably be thought to confer a n essential ben efit in the form of improved ai r line safety. 4

. Though it does confer an offsetting benefit, is the di scriminatory policy overinclusive because the benefit it co nfers on society could be achieved in a way less harmful to the di s crimi nate d

- against group , or underinclusive because the government’s purported rationale for the policy i m plies that it should equally apply t o other groups as well ? One way to decide whether a policy is overinclusive is to ask whether unequal treatment is essential to attaining the d esired benefit. Imagine a statute that imposes a $2 tax on women but not men. The proceeds from that tax are , let ’s assume, e s sential to the efficient operation of government. The tax is therefore socially efficient, and the ben e fits clearly6 No s
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outweigh the costs. But that’s not the end of the inquiry. Still to be d e termined 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 di s criminating against same

- sex couples clearly outwe igh the harms that this discrimination i m poses. Our questions go to the heart of equal protection do ctrine. Q uestions 1 and 2 are consistent with the vari ous fo rmula s for what entitles a discriminated

- against group to heightened scrutiny of the discriminat ion , and q uestions 3 and 4 ca p ture the ess ence of the Supreme Court’s approach in heigh t ened

- scrutiny cases: “ To succeed, the defender of the challenged action must show ‘ at least that the classific ation serves important governmental objectives and that th e di s criminatory means employed are substantially related to the a chievement of those objectives. ’ ” United States v. Virgi nia , supra , 518 U.S. at 524 (1996) , quoting Mississippi Unive r sity for Women v. Hogan , 458 U.S. 718, 724 (1982)

. The difference betwe en 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 bal ance the costs and benefits of the challenged discrim i nat o ry law . Instead it evaluate s the im portance of the state’s objective in enacting the law and the extent to which the law is suited (“tailored”) to achieving that ob je ctive . It asks whether the statute actually furthers the i n terest that the state as serts and whether there might be some less bu r densome alternative

. The analysis thus focuses not on “costs” and “benefits” as such, but on “fit.” That is why theNo s
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briefs in these two cases overflow with debate over whether prohibiting same

- sex marriage is “over

- or underincl usive”

— for example, over inclusive in i g noring the effect of the ban on the children adopted by same

- sex couples , unde rinclusive 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 m ore harm to the mem b ers of the discriminated

- against group than nece ssary to attain the l e gitimate 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 case s discuss , as we shall be doing in this opinion, the harms that a challenged statute may visit upon the discriminated

- against group, tho se harms don’t formally enter into the conventional analysis. When a statute discri minates against a pr otected class (as defined for exa m ple in
our question 2) , it doesn’t matter whether the harm i n flicted by the discrim i nation is a grave harm. A s we said, a statute that impose d a $2 tax on women but not men would be struck do wn unless there were a compelli ng reason for the discrimination. It wouldn’t matter that the harm to each pe rson discriminated against was slight if the benefit of impo sing the tax only on women was even slighter

. Our pair of cases is rich in detail but ultimately straigh tforward to dec ide . The challenged laws discrim i nate against a minority defined by an immutable characteri s tic , and the only rationale that the states put forth with any co n viction

— that same

- sex couples and their children don ’ t need marriage because same
- sex couples can’ t produce chi l dren, intended or unintended

— is so full of holes that it cannot be taken ser iously. To the extent that children are be t ter off in families in8 No s
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which the parents are married , they are be t ter off whether they are raised by their biological paren ts or by adoptive parents. The discrimination against same

- sex couples is irr ational, and therefore unconstitutional even if the discrimin ation is not su b jected to heightened scrutiny , which is why
we can largely elide the more complex analysis found in
mo re 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 Amen dment. 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 fu n damental right. The states reply that the righ t recognized in such cases is the right to choose from within the class of persons eligible to marry, thus excluding children, close rel atives, and persons already married

— and, the state s co n tend , pe r sons of the same sex. The plaintiffs riposte that there are good reasons for ineligibility to marry children, close rel atives, and the already married, but not for ineligibility to marry persons of the same sex. In light of the compelling a lternative grounds that we’ll be exploring for allowing same
sex marriag e, we won’t have to engage with the parties’ “fundame n tal right” debate ; w e can confine our attention to equal pr o tection. We begin our detailed analysis of whether prohibiting
same
- sex marriage denies equal protection of the laws by
no t ing that Indiana an d Wisconsin, in refusing to authorize such marriage or (with limited exceptions discussed later) to recognize such marriages made in other states by residentsNo s
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of Indiana or Wisconsin, are discriminating against hom osexuals by denying them a right that thes e states grant to heterosexuals, namely the right to marry an unmarried adult of their choice . And there is little doubt that s exual orient ation , the ground of the discrimination, is an immutable (and probably an innate, in the sense of in

- born) characteri stic r ather than a choice. Wisely, neither Indiana nor Wisconsin a rgues otherwise

. The Amer i can Psychological Association has said that “ most people experience little or no sense of choice about their sexual orienta tion

. ” APA, “Answers to Your Questions: F or a Better Understanding of Sexual Orie n tation & Homosexua l ity” 2 (2008), www. apa. org/ top ics/ lgbt/ orien ta tion.pdf (visited Sept. 2 , 2014, as were the other we b sites cited in th is opinion) ; see also G regory M. Herek et al., “ D emographic, Psychological, and Social Characteri s tics of Self

Identified Lesbian, Gay, and Bisexual Adults in a U S Prob ability Sample , ” 7 Sexuality Research and Social Policy 176 , 188 (2010) (“c ombining resp o n dents 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 percei ving that they had little or no choice about their sexual orie ntation ”). That homosexual orientation is not a choice is fu rther suggested by the absence of evidence (d e spite extensive efforts to find it ) that psycho therapy is effe c tive in altering sexual orientation in general and homosexual orientation in particular

. APA, “Answers to Your Que s tions ,” supra , at 3 ; Report of the American Psychological Associ a tion Task Force on Appropriate Therapeutic Responses to Sexual Orient a tion 35

– 41 (2009). The leading scientific theories of the causes of homose xuality are genetic and neuroendocrine theories, the latter b eing theories that sexual orientation is shaped by a fetus’s e x-10 No s
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posure to certain hormones . See, e.g

. , J. Michael Bailey, “Bi ological Perspectives on Sexual Orientation,” in Lesbian, Gay, and Bisexual Identities Over the Lifespan: Psychological Perspe ctives 102

– 30 (Anthony R. D’Augelli and Charlotte J. Patte rson eds. 1995); B arbara L. Frankowski, “ Sexual Orient a tion and Adolescents , ” 113 Pediatrics 1827 , 1828 (2004) . A l though it seem s paradoxical to suggest that hom o sexuality could have a genetic origin, giv en that homosexual sex is non

procreative, homosexuality may, like menopause , by redu cing procreation by some members of society free them to provide child

- caring assistance to their procreative rel a tives, thus increasing the survival and hence procreative prospects of these relatives. This is called the “kin selection hypoth esis” or the “helper in the nest theory

. ” See, e.g., A s sociation for Psychological Science, ”Study Reveals Potential Evol utionary Role for Same

- Sex Attraction,” Feb. 4, 2010, www.psychological science. 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/ Ba i ley%20and%20Zuk%202009%20Same%20sex% 20beha vio u r. p df . Fo r a respo n sible pop u lar treatment of the subject see William Kremer, “The Evolutionary Puzzle of Homosexual ity,” BBC News Mag a zine , Feb. 17, 2014 , www. b bc .com/news/magazine

- 26089486

. The harm to homosexuals (and, as we’ll e mphasize, to their adopted children) of being denied the right to marry is considerable. Marriage confers respectability on a sexual r elationship ; to e x clude a couple from marriage is thus to deny it a coveted status. Because homosexuality is not a volunta ry condition and homosexuals are among the most stigmatized,No s
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misunderstood, and discriminated

- against m i norities in the history of the world, the disparagement of their sexual or i e ntation , implicit in the d e nial 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 Ame ricans hold of same
- sex marriage. But it will enhance the st atus of these ma r riages in the eyes of othe r Americans, and in the long run it may convert some of the opp o nents of such
mar riage by demonstrating that homosexual married co uples are in essential r espects, notably in the care of their adopted children, like other married couples. The tangible as di stinct from the psychological benefits of marriage , which (along with the psychological benefits) e nure directly or indirectly to the children of the marriage, whether biological or adopted, are also considerable. In I ndiana they i n clude the right to file state tax returns jointly, Ind. Code § 6

- 3

- 4

- 2 (d) ; the marital testimonial priv i lege, § 34

- 46

- 3

- 1 (4) ; spousal

- support obligations, § 35

- 46

- 1

- 6 (a) ; s urv ivor benefits for the spouse of a public safety off i cer killed in the line of duty , § 36

- 8

- 8

- 13.8(c) ; the r ight to i n herit when a spouse dies intestate, § 29

- 1

- 2

- 1 (b), (c) ; c ustodial rights to and child su p port 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) . Be cause Wi sconsin a l lows domestic partnerships, some spousal benefits are available to same

- sex co u ples in that state . B ut 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 p resumption that all property of ma rried couples is marital property , § 766.31(2 ) ; and s tate

-12 No s
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mandated access to enrollment in a spouse’s health insu rance plan, § 632.746(7)

. Of great importance are the extensive federal benefits to which m arried 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 ; d eath benefits for surviving spouse of a military ve t eran, 38 U.S.C. § 1311 ; the right to transfe r assets to one’s spouse during marriage or at divorce without additional tax liability , 26 U.S.C. § 1041 ; e xemption from federal es tate tax of property that passes to the surviving spouse, 26 U.S.C. § 2056(a); the t ax exemption for
e m ployer

- provided healt hcare to a spouse, 26 U.S.C. § 106; Treas. Reg. § 1.106

– 1; and healthcare benefits for spouses of federal e m ployees, 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 u nconstitutional 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 I ndiana’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 I ndiana.] This places same

- sex couples in an unstable pos i tion of being in a second

- tier marriage [in Indiana, in the lo west

— the unmarried

— tier ] . The differentiation demeans the couple ... [and] humiliates tens of thousand s of children now being raised by same

- sex co u ples. The law

... makes it even more difficult for the children to understand the inte grity and closeness of their own family and its concord withNo s
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other families in their comm u nity and in their daily lives. ” Id

. at 2694. The Court went on to describe at length the federal mar ital benefits denied by the Defense of Marriage Act to ma rried same

- sex couples . Of particular relevance to our two
cases is the Court’s finding that denial of those benefits
causes economic h arm to children of same

- sex couples. “ It raises the cost of health care for families by taxing health benefits provided by em ployers to their wor k ers ’ same
- sex spouses. And it denies or reduces benefits allowed to fam ilies upon the loss of a spouse and par ent, benefits that are an integral part of family security. [The Act also] d ivests ma rried 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 r espo nsibilities 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 cohab i tation as a choice of couples indicates that on average the sum of the tangible a nd intangible benefits of marriage ou t weigh s 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 ther efore that Indiana and Wi s consi n must to prevail establish a clearly offsetting governmental interest in that rejection

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Whether they have done so is really the only issue before us, and t he ba l ance of this opinion is devoted to it

— except that before addressing it we must address the st ates’ argument that whatever the merits of the plaintiffs’ claims, we are bound by Baker v. Ne l son , 409 U.S. 810 (1972) (mem.), to reject them. For there the Supreme Court , without issuing an opi nion, dismissed “for want of a substantial federal question” an appeal from a state court that had held that prohi b iting
same
- sex marriage did not violate the Constitution. Al though even a decision without opinion is on the merits and so binds lower courts, the Supreme Court carved an exce ption to this principle of judicial hiera r chy in Hicks v. Miranda , 422 U.S. 33 2, 344 (1975), for “when doctrinal developments indicate othe r wise”; 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 co n cerned. Subsequent decisions such as Romer v. Evans , 517 U.S. 620, 634

– 36 (1996); Lawrence v. Texas , 539 U.S. 55 8, 577

– 79 (2003), and United States v. Windsor are disti n guishable from the pre sent two cases but make clear that Baker is no longer authoritative. At least we think they’re distinguish able . But Justice Scalia, in a dissent ing 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 ma r riage. I d . at 605. First up to bat is Indiana, which defends its refusal to a llow same
- sex marriage on a single ground, namely that go vernment’s sole purpose (or at least Indiana’s sole pu r pose) inNo s
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making marriage a legal relation (unlike cohabit a tion , which is purely contra ctual ) is to enhance child welfare. Notably the state does not argue tha t recognizing same

- sex marriage undermines co n ventional marriage. When a child is conceived intentionally, the parents normally i n tend to raise the child together. But pregnancy, and t he resulting birth (in the absence of abortion), are s om etimes accidental, unintended; and often in such circumstan ces the mother is stuck with the baby

— the f a ther , not having wanted to become a father, refuses to take any r e sponsibility for the child’s we lfare. The sole reason for Indiana’s ma rriage law , the state’s argument continues, is to try to channel unintentionally procreative sex into a legal r e gime in which the biological father is required to assume parental respons ibility. The state recognizes t hat some or even many hom osexuals want to enter into same

- sex ma r riages, but points out that many people want to enter into relations that go vernment refuses to enforce or protect (friendship being a n otable example). Government has no interest in re c ogniz ing and protecting same

- sex marriage , Indiana argues, because homosexual sex cannot result in uninten d ed 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: th e carrot supplementing the stick. Mar ital benefits for homosexual couples would not serve the re gulatory purpose of marital benefits for heterosexual co u ples because homosexual couples don’t produce babies

. The state’ s argument can be analogized to requir ing drivers’ licenses for drivers of motor vehicles but not for b icyclists. Motor vehicles are more dangerous to other users of the roads than bicycles are , and therefore a driver’s license is16 No s
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required to drive the former but not to pedal the latter. Bic yc lists do not and cannot complain about not ha v ing to have a license to pedal , because obtaining, renewing, etc., the l icense would involve a cost in time and money. The analogy is not perfect ( if it were, it would be an identity not an ana logy) because mar riage 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 f rom the ma rriage

- licensing regime : the cost of the license and the burden of marital duties, such as support, and the costs associated with di vorce. Moreover, even if possession of a d river’s l icense conferred benefits not available to bicyclists (di scounts, or tax credits, perhaps), the state could a r gue that it offered these benefits only to induce drivers to obtain a l icense (the carrot supplementing the stick), and that bicyclists d on’t create the same regulatory concern and so don’t d eserve a ca r rot. A nother 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 c redit, only lower

- income wor k ers are entitled to it. Should higher

- income workers complain about b e ing left out of the program , the government could reply that only lower

- income workers create a regulatory co ncern

— the concern that they’d be unable to suppo rt the mselves in retirement without government encourag e ment to
save while they’re young

.No s
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In short, Indiana argues that h omosexual relationships are created and dissolved without legal consequences b ecause they don’t create family

- related regulatory concer ns. Yet encouraging marriage is l ess about forcing fathers to take responsibility for their unintended chi l dren

— state law has mechanisms for determining paternity and requiring the father to contribute to the support of his children

— than about enhancing ch ild welfare by encouraging parents to commit to a stable relationship in which they will be raising the child t o gether. Moreover, i f channeling procreative sex into marriage were the only reason that Indiana reco g nizes marriage, the state would not allow a n infertile person to marry

. Indeed it would make marriage licenses expire when one of the spouses (fertile upon marriage) became i n fertile because of age or disease . T he state treats married homose xuals as would

- be “free riders” on heterosexual marriage, u nreasonably reaping benefits intended by the state for fe r tile couples. But infertile couples are free riders too. Why are they allowed to reap the benefits accorded marr iages of fe rtile couples , and hom o sexuals are not? The state offers an involuted pai r 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 infe rtile, and it argues that if these couples were forb idden 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 uninte ntional b a bies.” True, though the fertile member of an infertile
cou ple might decide instead to produce a child for the co uple by surr o gacy or (if the fertile member is the woman) a sperm bank, or to adopt, or to divorce. But what is most u n-18 No s
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likely is that the fertile member, though desiring a biolog i cal child, would have p r o creative sex with another per son and then abandon the child

— which is the state’s pr o fessed fear. The state tells us that “non

- procreating opposite

- sex co uples who marry model the optimal, socially expected beha vior for other opposite

- sex couples whose se xual inte r course may well produce children.” That’s a strange argument; fe rtile 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 he terosexua ls sends

— that marriage is a desirable state ? It’s true that infertile or otherwise non

- procreative hete rosexual 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 co uple to marry on whether both prospective spouses were fe rtile (although later we’ll see Wisconsin flir ting 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 ma rriage of close relatives for first cousins 65 or older

— a pop ulation guaranteed to be infertile because women can’t co nceive at that age? Ind. Code § 31

- 11

- 1

- 2 . If the state’s only i nterest in a l lowing marriage is to protect children, why has it gone ou t of its way to permit marriage of first cousins only after they are provably infertile? The state must think ma rriage valuable for something other than just procreation

— that even non
- procreative couples benefit from marriage.No s
. 14

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- 2526 19
And among non

- procreative cou ples , those that raise chi ldren , 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 discrim inat ion: favoring first cousins, provided they are not of the same sex, over homosexuals. Elderly first cousins are permi tted to marry because they can’t produce children; homose xuals are forbidden to marry because they can’t produce chi ldren. The state’s argu ment that a marriage of first cou s ins who are past child

- bearing age provides a “model [of] fam ily life for younger, potentially procreative men and women” is impossible to take s e riously. At oral argument the state‘s lawyer w as asked w hether “Ind i ana’s la w 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 a n swered that “the assumption is that with opposite

sex couples there is very little t hought given during the se xual act, sometimes, to whether babies may be a cons equence.” In other words, Indiana’s government thinks that straight couples tend to be sexually irresponsible, pr o ducing unwanted children by the carload, and so must be pressure d (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 r eally

— so have no need for mar riage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couple s do not pr o duce20 No s
. 14

- 2386 to 14

- 2388, 14

- 2526

unwanted children; their reward is to be denied the right to marry. Go fi g ure. Which brings us to Indiana’s weakest defense of its di stinction among different types of infertile couple: its a ssumption that same

- sex marriage cannot contribute to all eviating the problem of “acc i dental births,” which the state contends is the sole governmental interest in marriage. Su ppose the consequences of accidental birth s are indeed the state’s sole reason for giving marriage a legal status. In a dvancing this as the reason to forbid same

- sex marriage, Ind iana has ignored adoption

— an extraordinary oversight . U ninte n tional offspr ing 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 u nwanted children, and unwanted children are a major pro blem for soc i ety, which is doubtless the reas on h omosexuals are permitted to adopt in most states

— including Indiana and Wisco n sin

. 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 h omosex ual couples. Gary J. Gates, “ LGBT Parenting in the United States ” 3 ( Wi l liams Insti tute, UCLA School of Law, Feb. 2013), http:// wil liams insti tute. law. ucla.edu/wp

- content/ up loads/ lg bt

- pare nting. pd f; Gates, “Same

- Sex Co u ples in Indiana: A De mo graphic Summary ” ( Williams Institute, UCLA School of Law , 2014), http://williamsinstitute.law. u c la. edu/wp

- con tent/up loads/ IN

- same
- sex
- couples

- demo

- au g 20 14.pdf ; Gates, “Same

- S ex Couples in Wisconsin: A Dem ographic Survey ” ( Williams In stitute, UCLA School of Law, Aug. 2014), http:// will iams institute.law.ucla.edu/wp

- con teNo s
. 14

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- 2388, 14

- 2526 21
nt/up l o a ds/ W I

- same
- sex
- co u p les

- demo

- aug
- 2014.pdf

. Gary Gates’s demographic surveys find that among couples who have children , h o mosexual couples are five times as likely to be raising an ad opted child as heterosexual couples in Ind iana, and two and a half times as likely as heterosexual co uples in Wisco n sin. 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 b iological children in tandem.” W hy the qualifier “biological”? The state recognizes that family is about raising children and not just about producing them

. I t does not explain why the “point of marriage’s ass ociated benefits and protections” is inapplicab le to a co u ple’s adopted as distinct from biological chi l dren. 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 ent i tled . A nd so
same
- sex marriage im proves the prospects of u n intended children by increasing the number and resources of prospe ctive adopters. Notably, same
- sex couples are more likely to adopt foster children than opp o site

- sex couples are. Gates,

“ LGBT Parenting in the United States, ” supr a , at 3. As of 2011, there were some 400,000 American chi l dren in foster care, of whom 10,8 00 were in Indiana and about 6500 in Wisconsin

. U.S. Dept. of Health & Human Services, Chi ldren’s Bureau, “ How Many Ch i ldren Are in Foster Care in22 No s
. 14

- 2386 to 14

- 2388, 14

- 2526

the U.S.? In My St ate? ” www.acf.hhs.gov/ pro g ra m s/cb/ faq/ fo ster

- care4

. Also, the more willing adopters there are, not only the fewer children there will be in foster care or being raised by sin gle mother s but also the fewer abortions there will be. Carrying a baby to term and putting the baby up for ado ption 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 commun ity recognizes this. See , e.g., St udents for Life of America, “Adoption, Another Option,” http:// stu d ents forlife.org/ resources/ organ ize

- an
- event/adopt ion : “ There may be times when a mother facing an u nplanned pregnancy may feel completely unequipped to pa rent her child. She may feel her only option is to kill her pr eborn child. Pro

- life individuals touch lives by helping wo men place their baby or child for adoption. It is impo rtant to show women on your campus that adoption can be the answer to all of her fears ” ( emphasis in original). C onsider now the emotional comfort that having married parents is likely to provide to children adopted by same

- sex couples. Su p pose such a chil d comes home from school one day and reports to his parents that all his clas s mates 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 discover ing that they’re not in st ep with their peers . If a child’s same
- sex parents are married, however, the parents can tell the child truthfully that an adult is pe rmitted to marry a person of the o p posite 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. Co n-No s
. 14

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- 2526 23
versely , imagine the pa r ents 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 clas s mates

. Indiana permit s joint adoption by homosexuals (Wisco nsin does n o t) . 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 biolo gical parents , it must be better for children who are being brought up by their adoptive parents. The state should want hom o sexual couples who adopt children

— as, to repeat, they are pe rmi t ted 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 ser ious.) The state’s claim that conventional marriage is the sol ution to that prob lem is belied by the state’s exper i ence with births out of wedlock. Accidental pregnancies are found among ma r ried couples as well as unmarried couples, and among individuals who are not in a committed relatio n ship and have sexual intercourse that results in an uni n tended preg nancy . B ut the state believes that married co u ples 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 su c ceeding , we would expect a drop in the percentage of chi l dren born to an unmarried woman, or at least not an i n crease in that percentage. Yet in fact that pe r centage has been rising even since Indiana in 1997 reenacted its prohib i tion of same

- sex marriage (thus u nderscoring its dete r mined opposition to such marriage) and for the first time d e clared that it would24 No s
. 14

- 2386 to 14

- 2388, 14

- 2526

not recognize same

- sex marriages co n tracted in other states or abroad. The legislature was fearful that Hoosier hom osexuals would flock to Hawaii to get m a r ried, for in 1996 the Hawaii courts appeared to be moving toward i n validating 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 la t est year for which we have statistics) the percentage was 43 pe r cent. The corr e sponding figures for Wisconsin are 28 percent and 37 percent and for the nation as a whole 32 per cent and 41 percent . (The sour ce of all these data is Kids Count Data Center, “Births to U n married Women,” http:// data cen ter. kids c ount.org/data/tables/7

- births

- to

- un ma r ried

- women# det ail ed/2/16,51/false/868,867, 1 33,38, 3 5/any/ 25 7,258 .) There is no indication that these states’ laws , ostensibly aimed at cha nneling procreation into marriage , have had any such e f fect

. A degr ee of arbitrariness is inherent in government reg ulation , but when there is no justification for government’s treating a traditionally discriminated

- against group signif icantly 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 di scrimination against homosexuals anywhere in the United States

. The state either is oblivious to, or thinks irrel e vant, that until quite recently homosexuality was anathem a tized by the vast majority of heterosexuals (which means, the vast majority of the American people ) , including by most Amer icans who were otherwise quite liberal. Homosexuals had, as homosexuals, no rights; homosexual sex was criminalNo s
. 14

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- 2388, 14

- 2526 25
(though rarel y prosecuted); homosexuals were formally banned from the armed forces and many other types of go vernment work (though again enforcement was sporadic); and there were no laws prohibiting employment discrimin ation against hom o sexuals. Because homosexuality i s more easily concealed than race, homosexuals did not experience the same economic and educational discrimination, and pu blic humili a tion, that African

- Americans experienced. But to avoid di s crimination and ostracism they had to conceal their hom o sexualit y and so were reluctant to participate openly in homosexual relationships or reveal their hom o sexuality 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 r ational relationship to a legitimate governmental purpose .” Romer v. Evans , supra , 517 U.S. at 635 . Indiana’s ban flunks this u n demanding 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 amen d ment, 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 u nma r ried individu als shall not be vali d 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 marriage s into the state’s constitution, as yet without su c-26 No s
. 14

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- 2388, 14

- 2526
cess. A number of large businesses in Indiana oppose such a
co n stitutional 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 co n stitutional amendment would impede the process

— an d 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 r eform blocked

. ( On the attitude of business in Indiana and Wisconsin to same

- sex mar riage, see, e.g., Nick Halter, “ Ta rget Files Court Papers Supporting Same

- Sex Marriage in Wisconsin and Indiana,” Aug. 5, 201 4, www.biz jour nals.com /twin cities/news/2014/08/05/target

- amicus

- same
- sex
- mar ri a g e
- wis c onsin

- 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 pr ohibiting same

- sex marriage is , like Indiana’s , undermined by a “first cousin” exempti on

— 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 cou sins 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

- cousi n 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, i ncluding ther e fore (as an Indiana court has held) marriage s of first cousins con tracted in Tennes s ee, a state that places noNo s
. 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 co usins (prohibited in Indiana) that happen to be contracted in states that permit such marriages, but of refusing, by virtue of the 1997 amendment, to reco gnize same

- sex marriages (also prohibited in Indiana) co ntracted in states that permit them. This s ugg ests animus against same

- sex marriage, as is further suggested by the state’s in a bility to make a plausible argument for its refusal to reco g nize same

- sex marriage. But back to Wisconsin , which makes four arguments of its own against such marriage : First, limiting marriage to het erosexuals is traditional and tradition is a valid basis for li m iting legal rights . S econd, the consequences of allowing
same
- sex ma r riage cannot be foreseen and therefore a state should be permitted to move cautiously

— that is, to d o not hing, for Wisconsin does not suggest that it plans to take any steps in the direction of eventually authorizing such ma rriage . T hird, 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 . A nd fourth, same
- sex marriage is analogous in its effects to no

- fault divorce, which, the state argues, makes marriage fragile and unreli able

— though of course Wisco n sin has no
- fault divorce , and it’s surprising that the stat e’s assistant a t torney general, who argued the state’s appeal , would trash his own state’s law

. The conten tion, built on the analogy to no

- fault divorce and sensibly dropped in the state’s briefs in this court

— but the
a s sistant attorney general could not r esist resuscitating it at the oral argument

— is that, as the state had put it in submi ssions to the district court, allowing same

- sex marriage cr e-28 No s
. 14

- 2386 to 14

- 2388, 14

- 2526
ates a danger of “shifting the public understanding of ma rriage away from a largely child

- centric institution t o an adult

- centric institution focused on emotion.” No evidence is pr e sented that same

- sex marriage is on average less “child

centric” and more emotional than an infertile ma r riage of heterosexuals , or for that matter that no

- fault divorce has rendered ma r riage less “child

- centric

. ” The state’s argument from tradition runs head on into Loving v. Virginia , 388 U.S. 1 (196 7), since the limitation of marriage to persons of the same race was traditional in a number of states when the Supreme Court invalidated i t

. L aws forbidding black

- white marriage date d back to colon ial t imes and were found in northern as well as southern co lonies and states

. See Peggy Pascoe, What Comes Nat u rally: Misceg e nation Law and the Ma k ing of Race in America (2009). Tradition per se ha s no positive or negative sign i ficance. There are good traditions, bad traditions pill o ried in such famous literary stories as Franz Kafka’s “In the Penal Col ony” and Shirley Jackson’s “The Lottery ,” bad tr a ditions that are historical realities such as ca n nibalism, foot

- binding, and suttee, and traditions that from a public

- policy stan d point are neither good nor bad (such as trick

- or
- treating on Ha lloween)

. Tradition per se therefore cannot be a lawful ground for discrimination

— regardless of the age of the tr adition. Holmes thought it “revolting to have no better re a son 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 r eferring to the former) died in 1413. Criticism of homosexual ity is far older. In Leviticus 18:22 we read that “ t hou shalt not lie with mankind, as with womankind: it is abomination.”No s
. 14

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- 2526 29

The limitation on interracial marriage invalidated in Lo ving 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 di f ferent races had in 1967 , as before and since , abundant po s sibilities for finding a suitable marriage partner of the same race

. In contrast, Wisconsin’s law , like Indiana’s, prevents a hom osexual from marrying any person with the same sexual or ientation , which is to say (with occasional exceptions) any person a h omosexual would want or be wil l ing to marry

. Wisconsin points out that many venerable customs a ppear to rest on nothing more than tradition

— one might even say on mindless tradition . Why do men wear ties? Why do pe o ple shake hands (thus spreading germs) or give a peck on the cheek (ditto) when greeting a friend? Why does the Pres i dent at Thanksgiving spare a brace of turkeys (two out of the more than 40 million turkeys killed for Thanksgiving di n ners) 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 prote ction clause , as in Loving

. See 388 U.S. at 8

– 12. Against this the state argues in its opening brief that Lo ving “should be read as recognizing the constitutional r estrictions 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 homose xuals that they are forbidden to decide for themselves how to30 No s
. 14

- 2386 to 14

- 2388, 14

- 2526

a r range 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 “tho usands of years of col lective experience has [ sic ] established traditional marriage, between one man and one woman, as optimal for the family, society, and civilization.” No ev idence in support of the claim of optimality is offered, and there is no acknowledgment that a number of countries permit p o lygamy

— Syria, Yemen, Iraq, Iran, Egypt, Sudan, Morocco, and Algeria

— and that it flourishes in many Afr ican countries that do not actually a u thorize it, as well as in parts of Utah. (Indeed it’s been said that “polygyny, wher eby 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 Co n quered Marriage 10 (2006 ).) But suppose the assertion is correct. How does that bear on same
- sex marria ge? Does Wi s consin 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 heterose xuals to convert to homosexuality? Efforts to convert hom osexuals to heterosexuality have been a bust; is the opp o site 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 anal ysis

. Laws forbidding gratuitous cruelty to an imals, and laws providing public assistance for poor and di sabled persons, are exam ples. There is widespread moral o pposition to homosexuality. The opponents are entitled toNo s
. 14

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- 2526 31
their opinion

. But neither Indiana n or Wisconsin make a moral argu m ent against permi t ting same

- sex marriage. The state’s second argument is : “ go slow ” : maintaining the prohibition of same
- sex marriage is the “prudent, ca utious a p proach,” and the state should therefore be allowed “to act deli berately and with prudence

— or, at the very least, to gather sufficient information

— before transforming this cornerstone of civilization and society.” There is no sugge stion 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 “corne r stone 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

. A t the oral a rgument the state’s lawyer conceded that he had no knowledge of any study underway to determine the possible
e f fects on heterosexua l marriage in Wisconsin of allowing
same
- sex marriage

. He did say that s ame
- sex ma r riage might somehow devalue marriage, thus making it less a t tractive to opposite

- sex couples. But he quickly acknow l edged that he hadn’t stu d ied how same
- sex marriage might harm marriage for heterosexuals and wasn’t prepared to a r gue the point

. Massachusetts, the first state to legalize same

- sex marriage, did so a decade ago. Has heterosexual marriage in Mass achusetts been “transformed”? Wisconsin’s lawyer didn’t suggest it h as been. He may have been gesturing toward the concern e xpressed by some that same

- sex marriage is likely to cause the heterosexual marriage rate to decline because heterose x-32 No s
. 14

- 2386 to 14

- 2388, 14

- 2526

uals who are hostile to homosex u als, or who whether hostile to them or not think t hat allowing them to marry d e grades the institution of marriage (as might happen if people were allowed to marry their pets or their sports cars), might d ecide not to marry. Yet the only study that we’ve disco v ered, a reputable stati s tical study, finds tha t allowing same

- sex marriage has no effect on the heterosexual marriage rate. Marcus Dille n der, “The Death of Marriage? The Effects of New Forms of Legal Recognition on Marriage Rates in the United States,” 51 Demo g raphy 563 (2014). No doubt there are
more persons more violently o p posed 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 ma rriage. But they would tend also to be the citizens of the state who were most commi tted to heterosexual marriage (devout Catholics, for e x ample). No one knows exactly how many Americans are hom osexual. Estimates vary from about 1.5 percent to about 4 pe rcent. The estimate for Wisconsin is 2.8 percent, which i ncludes bisexual and transgen dered persons. Gary J. Gates & Frank Newport, “ LGBT Percentage Highest in D.C., Lowest in North Dakota, ” Gallup (Feb. 15, 2013), www. gal lup. com/ poll/160517/lgbt

- percentage

- highest

- lowest

- north

- da k ot a.a s px . Given how small the percentage is, it is sufficiently i mplausible that allowing same

- sex marriage would cause pa lpable harm to family, society, or civilization to require t he 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 271 6 , that “at present, no one

— including social scientists, philos o phers,No s
. 14

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- 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 ce r tainly not equipped to make such an assessment.” What follows, if prediction is impossible? Justice Ali to thought what follows is that the Supreme Court should not interfere with Congress’s dete rmination in the Defense of Marriage Act that “marriage,” for purposes of entitlement to federal mar i tal benefits, excludes
same
- sex marriage even if lawful under st ate law. But can the “long

- term ramifications” of any constitutional decision be predicted with certainty at the time the decision is re ndered? The state does not mention Justice Alito’s invocation of a moral case against same

- sex ma r riage, when he states in his dissent that “ o thers explain the basis for the institution in more philosophical terms. They argue that marriage is esse ntially the solemnizing of a comprehensive, exclusive, perm anent 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 a r guments 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 di stressed by the idea or reality of such marriage ; otherwise these two cases wouldn’t be here . But there is a difference ,34 No s
. 14

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- 2388, 14

- 2526
famously emphasized by John St uart Mill in On Liberty (1869) , between the di s tress 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 b e havior that disgust s some people but does no (othe r) harm to them

. Mill argued that neither law (government regulation) nor
mora l ity (condemnation by public opinion) has any proper co n cern with acts that, un like a punch in the nose, inflict no temporal harm on another person without consent or justif icati on. The qualification temporal is key. To be the basis of legal or moral concern, Mill argued, the harm must be tang ible, secular, material

— physical or financial, or, if emotional, focused and direct

— rather than moral or spiritual. Mill illu strated nontemp oral harm with revulsion against polygamy in Utah (he was writing before Utah agreed, as a cond i tion of being admitted to the union as a state, to amend its constit ution to prohibit polygamy). The English people were fiercely critical of polygamy wherever it occurred . As they were ent itled 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 En g land. Similarly, while m any het erosexuals (though in America a rapidly diminishing number) disapprove of same
- sex ma rriage, there is no way they are going to be hurt by it in a way that the law would take cognizance of. Wi s consin doesn’t argue otherwise. Many people strongly disapproved of i nterracial marriage, and , more to the point, many people strongly disapproved (and still strongly disapprove) of h omosexual sex, yet Loving v. Virginia invalidated state laws banning interracial marriage, and Lawrence v. Texas inval idated state laws b anning homosexual sex acts.No s
. 14

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- 2526 35
Though these decisions are in the spirit of Mill, Mill is not the last word on public morality. But Wisconsin like I ndiana does not base its prohibition of same

- sex marriage on morality , perhaps because it believes plausibly tha t La w rence 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 mu st be of the same
sex. Id ., § 770. 0 5(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 propos ition 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)

. I ndeed that is what the c ourt held . It pointed out that c hapter 770 doesn’t specify the

r ights and obligations of the parties to a domestic partne rship . R ather you must go to provisions specifying the rights and obligations of married persons and see whether a prov ision that you’re concerned with is made expressly applicable to domestic partne rships, 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 e xplained , the rights and obligations of domestic partners are far more limited than those of ma rried 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 l egal status identical or substantially similar to t hat of ma rriage for unmarried individuals shall not be valid or reco g-36 No s
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nized .” Wis. Const. Art. XIII, § 13. D o mestic partnership in Wisconsin is not and cannot be marriage by a n other name. It is true that because the state does not regard same
- sex marriage s contracted in other states as wholly void (though they are not “recognized” in Wisconsin) , citizens of Wisco nsin who contract same
- sex marriage s in states in which such marriages are legal are not debarred from receiving some of the federal benefits to whi ch legally married persons (i nclu d ing 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 incl ude 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 interr acial marriage had said to interracial couples: “you can have domestic partnerships that create the identical ri ghts and o bligations of marriage, but you can call them only ‘civil u nions’ or ‘domestic partnerships.’ The term ‘marriage’ is r eserved for same
- race unions.” This would give interracial couples much more than Wisconsin’s domestic partnership statute gives same
- sex couples . Y et withholding the term “marriage” would be considered deeply offensive, and , ha ving 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 domesticNo s
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partnerships to adopt jointly, as married heterosexual co uples are allowed to do (and in Indiana, even unmarried ones) . The refusal harms the children, by telling them they don’t have two parents , lik e 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 justif ication. Wisconsin’s remaining argument is that the ban on same
sex marriage is the outcome of a democr atic process

— the enactment of a constitutional ban by popular vote . But h omosexuals 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 d e mocratic 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 powe rful out of proportion to their numbers.” No evidence is pr esented by the state to support this contention. It is true that an increasing number of heterosexuals support same

- sex marriage; othe r wise 11 states would not have changed their laws to permit such marriage (the other 8 states that allow
same
- sex marri age do so as a result of judicial decisions i nvalidating the states’ bans) . No inference of manipulation of the democratic process by homosexuals can be drawn, ho wever, 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 laws38 No s
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punishing cruelty to animals, even though not a single an imal 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 discri m ination on the basis of sexual orientation. As we have been at pains to explain, the grounds advanced by Indiana and Wi sconsin for their discriminatory polic ies are not only conje ctural; 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
rea ding of the Supreme Court’s decision s in Lawrence and Wi n dsor , that statutes that discriminate on the basis of sexual orienta tion are subject to “heightened scrutiny ”

— and in d oing so noted that Windsor , in invalidating the Defense of Marriage Act, had bala nced the Act’s harms and offsetting benefits: “Notably a b sent from Windsor ’ s review of DOMA are the ‘ strong pr e sump tion’ in favor of the con stitutionality of laws and the ‘ extremely deferential ’ posture toward go vernment action that are the marks of ration al basis review.

... In its parting sentences, Windsor explicitly announces its ba lancing of the government ’ s interest against the harm o r inj ury to gays and lesbians: ‘ The federal statute is invalid, for no legitimate purpose overcomes the purpose and effec t to di sparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dig nity.’ 133 S.No s
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Ct. at 2696 (e m phasis added). Windsor ’ s balancing is not the work of r a tional basis review.” The Supreme Court also said in Windsor t hat “t he Act’s demonstrated purpose is to ensure that if any State d e cides to recognize same

- sex marriages, those unions will be trea ted as second

- class marriages for purposes of federal law. ” 133 S. Ct. at 2693

– 94. A second

- class marriage would be a lot b etter than the cohabitation to which Indiana and Wisconsin have co n signed same

- sex couples. The states’ concern with the problem of unwanted chi ldren is valid and important, but their solution is not “ta ilored” to the problem, because by denying marital ri ghts 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’ sol ution is thus, in the familiar terminology of constitutional di scriminati on 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 lawyer s claim to fear the state’s being held in contempt b ecause it doesn’t know what measures would satisfy the i njunction’s command that all relevant state officials “treat
same
- sex couples the same as differ ent sex couples in the context of processing a marriage license or determining the rights, protections, oblig a tions or benefits of marriage.” If the state’s lawyers really find this command u n clear, they should ask the district judge for clarification. (Th ey should have done so already; they h a ven’t.) Better yet, they should40 No s
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draw up a plan of compliance and submit it to the judge for
a p proval. The district court judgments invalidating and enjoining these two states’ prohibition s of same

- sex marriage are A FF IRMED

.