Virginia Wolf v. Scott Walker
2014 U.S. App. LEXIS 17294
| 7th Cir. | 2014Background
- Indiana and Wisconsin banned same-sex marriage and refused to recognize such marriages from other jurisdictions, leading to federal district court invalidations.
- Court adopts a four-question framework for equal-protection analysis focusing on discrimination against a minority defined by immutable characteristics.
- Discrimination is against sexual orientation, an immutable characteristic, with presumed harms to same-sex couples and their adopted children.
- States argue the bans serve child welfare by channeling procreative sex into heterosexual marriage and protecting societal interests.
- Court acknowledges the Windsor and related decisions to apply heightened scrutiny or its equivalent, rejecting the states’ justifications as implausible and over-/underinclusive.
- Plaintiffs argue marriage benefits improve outcomes for children and that denying marriage harms both couples and adoptive families alike.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does banning same-sex marriage discriminate on immutable grounds? | Gays are an immutable group; ban harms them. | States may regulate marriage to promote traditional family structure. | Yes, discrimination based on sexual orientation. |
| Should the bans be subjected to heightened scrutiny? | Discrimination is persistent and harms children. | Rational basis review suffices for non-suspect classifications. | Discrimination warrants heightened scrutiny or its equivalent. |
| Are the bans overinclusive or underinclusive? | bans harm adoptive/non-procreative families similarly | aimed at channeling procreation into heterosexual marriage | Yes, overinclusive and underinclusive. |
| Does due process extend a fundamental right to same-sex marriage? | Marriage is a fundamental right within equal protection analysis. | Not necessary to reach due process; focus on equal protection. | Court permits analysis under equal protection without relying on a fundamental-right holding. |
Key Cases Cited
- Loving v. Virginia, 388 U.S. 1 (Supreme Court 1967) (struck down race-based marriage bans; tradition not determinative)
- Rom er v. Evans, 517 U.S. 620 (Supreme Court 1996) (used as basis for heightened scrutiny in equal protection)
- Lawrence v. Texas, 539 U.S. 558 (Supreme Court 2003) (invalidated sodomy law; supportive for rights of same-sex couples)
- United States v. Windsor, 133 S. Ct. 2675 (U.S. Supreme Court 2013) (invalidated DOMA; emphasized equal protection and dignity)
- Baker v. Nelson, 409 U.S. 810 (Supreme Court 1972) (distinguished; no longer controlling authority)