A three-judge panel in Chicago is considering whether to allow same-sex marriages in Wisconsin and Indiana.
The 7th Circuit Court of Appeals heard oral arguments Tuesday, and judges wasted no time in pushing back on the state's argument of tradition being a reason to uphold the state's "one man one woman" constitutional marriage amendment.
The panel included a mix of Republican and Democratic appointees.
Judge Richard Posner took issue with Wisconsin Deputy Attorney General Tim Samuelson making an argument for tradition, calling the argument feeble.
"These people and their adopted children are harmed by your law now," Posner said. "The question is, 'What is the offsetting benefit of your law? Who is being helped by it?'"
"Your honor, respectfully, that turns the analysis on its head," Samuelson said.
"Look, answer my question," Posner said. "Who is being helped by this law, if anyone?"
"I think society is," Samuelson said.
Speaking to reporters after about an hour of discussion by judges and attorneys, Wisconsin Family Council President Julaine Appling, who has filed briefs supporting the ban, said she felt judges did not understand the potential harm.
"I think we missed some important points in there," Appling said. "I think we missed the fundamental reality that every child who is born forever, has both a mother and a father. That is a biological reality that we cannot deny."
Both attorneys and same-sex couples who made the trip to Chicago left the hearing very hopeful.
"We were happy we were able to be here and actually witness the court case," Madison plaintiff Judy Trampf said. "It brought tears to our eyes at times, and we're very, very hopeful for the outcome of our case."
"Of course we don't know how the case is going to come out because you can't judge reliably the outcome of the case based on the court's questions at argument, but it was a good day for same-sex couples today," ACLU attorney James Essex said.
The court will now have to decide whether to uphold the lower court's decision that the ban is unconstitutional, as well as whether same-sex marriages should continue to be blocked while the case is on appeal.
It's unclear when the court will rule. It's likely this case or another state's marriage case will get taken to the U.S. Supreme Court in its next term.