Some of the plaintiffs in Virginia Wolf v. Scott Walker, the lawsuit that challenges Wisconsin’s ban on same-sex marriage, traveled to Chicago by bus to attend Tuesday’s hearing before the U.S. 7th Circuit Court of Appeals and see their lawsuit through.
The American Civil Liberties Union’s bus ride to the hearing did not follow a direct route. It began the day in Madison and stopped for press conferences in Milwaukee and Racine before heading toward Chicago, eventually slowing to a crawl while approaching the city during rush hour traffic.
Among those riding on the bus were Kami Young and Karina Willes. The couple has been together for 13 years, and got married in Minnesota in December. They have a daughter, Olivia, who is just 5 months old. She’s also on the bus, asleep in her car seat.
Young said that the trip was historic, and that even if Olivia wouldn’t remember it, she wanted her to be a part of it.
“Just the sheer fact that we would bring a 5-month-old on a bus like this on trip like this must tell you how much we really want to be here, and how important it is for us to be here,” said Young.
Young is considered Olivia’s parent in Wisconsin, but Willes is not. Willes said the state would not even let her put her name on Olivia’s birth certificate.
“We wanted our daughter to have married parents and so we got married, but even though we’re married and we have a child, I’m not recognized as a legal parent,” she said. “And that really hurts.”
The ACLU’s lawsuit challenging Wisconsin’s ban is about more than just same-sex parents and their children. But during the hearing’s oral arguments, it was children that Judge Richard Posner wouldn’t stop talking about. A lawsuit against Indiana’s same-sex marriage ban was also before the court. Just a minute into the defendant’s arguments in that case, Posner interrupted to ask why the state has any interest in making it harder for same-sex parents to marry.
“Wouldn’t it be better for the psychological health of the children if their same-sex parents were married?” asked Posner.
Posner was just as aggressive with Wisconsin Assistant Attorney General Timothy Samuelson, pressing him over and over again to explain the state’s reasoning for its same-sex marriage ban.
“What’s the rational basis for a legislative choice denying same-sex marriage? We know that these people want to get married. We think, or at least I think, that it’s good for the kids. So what’s the offsetting harm?” he asked.
After oral arguments, dozens of reporters from both states scrambled to get quotes to explain what just happened. Wisconsin Family Action’s Julaine Appling was there. Her group was the driving force behind Wisconsin’s same-sex marriage ban.
“I think we missed the fundamental reality that every child that was born in forever has both a mother and father,” said Appling. “That’s a biological reality that we can’t deny.”
Appling’s attorney Mike Dean didn’t mention Posner by name, but he said the judges’ arguments missed the point.
“This is why courts are criticized for legislating,” said Dean.
Karina Willes also took a turn addressing a row of TV cameras. Wills said Posner’ comments struck a nerve.
“It brought tears to my eyes,” said Willes. “I think he hit the nail on the head.”
Willes, who stood next to Kami Young and held their daughter during the TV interview, said families like theirs have the same ability to raise children in a loving home as anyone else.
“For that to be the first words out of Judge Posner’s mouth, talking about children, it was amazing,” said Young. “It was really touching.”
Willes and the other plaintiffs were soon back on the bus to Wisconsin. Whatever the court decides, there’s a good chance that the ruling will be appealed to the U.S. Supreme Court — which may mean another road trip, this time to the nation’s capital.
Correction: The radio version of this story said that the name of the judge who brought up the issue of same-sex couples' children was William Posner. That judge's name is actually Richard Posner.