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Wisconsin same-sex marriage case heads to Seventh Circuit Court of Appeals

LGBT Legal Cases Marriage equality Marriage Equality Trials

State officials in Wisconsin have filed a notice of appeal in Wolf v. Walker, the federal challenge to the state’s same-sex marriage ban.

There were questions over the timing of the possible appeal, because the injunction and stay were entered weeks ago. The same-sex couples who are plaintiffs in the case had asked the judge to lift the stay, arguing that the state was playing procedural games. (The state has responded to that request here.)

Since a stay is in effect, same-sex couples in Wisconsin are unable to marry.

A challenge to Indiana’s ban is in the Seventh Circuit as well. The briefing in that case has been fast-tracked.

Thanks to Kathleen Perrin for these filings

39 Comments

  • 1. LK2013  |  July 10, 2014 at 2:13 pm

    Oh, well. Onward.

  • 2. StraightDave  |  July 10, 2014 at 6:25 pm

    …and upward. Don't forget upward. This is no longer just a heavy slog. It is now actually getting somewhere, both tangible as well as hearts and minds. Who would have placed their bets on 19 just a year ago? CO was the breaker for me. It's the first time I can honestly say our side was given the benefit of the doubt. Just wait for the citations about lack of harm.

  • 3. Bruno71  |  July 10, 2014 at 7:32 pm

    I kind of think the 1st time we were given the benefit of the doubt was no stay in Kitchen, though that was unfortunately reversed by SCOTUS.

  • 4. Ragavendran  |  July 10, 2014 at 8:10 pm

    Hopefully the Plaintiffs here can petition the Court for an expedited process, citing that the Indiana appeal had been expedited sua sponte. Then, both the Wisconsin and Indiana appeals can be scheduled for oral argument on the same day/session by the same panel – which seems to be a pretty popular approach by the circuits so far.

  • 5. Ragavendran  |  July 10, 2014 at 8:24 pm

    Oral argument audio of New Jersey's conversion therapy case today at the Third Circuit:
    http://www2.ca3.uscourts.gov/oralargument/audio/1

  • 6. eizverson22  |  July 10, 2014 at 9:18 pm

    As long as continuous efforts will be successful, and refueling.<img src=http://ladyoffice.com/nesti/chi.jpg>

  • 7. Sagesse  |  July 10, 2014 at 9:49 pm

    This exchange is absolutely frightening. The defense counsel was practically incompetent… to the extent the panel of judges would allow them to complete a sentence.

  • 8. tornado163  |  July 10, 2014 at 10:03 pm

    I haven't had a chance to listen, which side did you mean was incompetent? NJ defended the ban on conversion therapy at the district level. Did you mean appellant (the counselors who want to get rid of the ban) or appellee (NJ, which wants the ban on conversion therapy to stay)? We're on NJ's side on this one.

  • 9. Ragavendran  |  July 10, 2014 at 10:42 pm

    I'm ROFL now, at minute 8, where a judge says, "the therapy that is offered here is cock, being cock therapy." At first I was aghast, then, It took the next sentence for me to figure out that he was saying "talk" not "cock". You gotta listen to that part! Somebody please please tell me they heard it the same way I heard it! (I'm using VLC 2.1.4 on Windows 7.)

  • 10. Zack12  |  July 10, 2014 at 11:41 pm

    The 7th circuit is heavily Republican, many of them from St. Ronnie's day.
    Let's just hope we get RIchard Posner instead of Frank Easterbrook on this one.
    They are both conservative judges but the former is more likely to rule in our favor then the latter.

  • 11. Ragavendran  |  July 11, 2014 at 1:20 am

    Counsel for the Defendant – the state of new jersey was terrible. She (and I) was aghast at how difficult it was for the panel to grasp the difference between speech and conduct in the therapeutic setting. It is one of those things that is so simple and obvious to the person explaining it that it is hard to explain. Like 3 plus 2 equals 5. So she simply kept repeating herself and that was no good. (The judges also misunderstood what she was saying so many times I started to question whether this panel was really as dumb as they sounded.) Fortunately, counsel for the Intervenor-Defendant Garden State Equality, in his few minutes time, I think, helped the panel understand somewhat what the difference was. He cleverly used "words" to describe the therapy technique and distinguished it from protected speech. I wish he had most of the defense time. But still, I am very very upset, based on the oral argument, that this case is probably going to turn against us. And worse, if that happens, there will be a circuit split, which we all know is highly persuasive for SCOTUS to take it up. I don't want that. Not now. Please.

  • 12. Sagesse  |  July 11, 2014 at 7:17 am

    I heard it the same way.

  • 13. brandall  |  July 11, 2014 at 7:25 am

    Governor Hickenlooper is asking Attorney General John Suthers to stand down.

    He urged the AG not to challenge the decision, calling Colorado's same-sex marriage ban "discriminatory" and telling Suthers if he feels the need to defend it, then take it to the state Supreme Court.

    It's going to be a very interesting Friday! As I said yesterday, Suthers is nearing checkmate.
    http://www.9news.com/story/news/local/politics/20

  • 14. DACiowan  |  July 11, 2014 at 7:28 am

    Come on Colorado! New Mexico needs company!

  • 15. brandall  |  July 11, 2014 at 7:38 am

    Clarification to my "checkmate" statement. I meant to say political checkmate. There is no predicting what the SO SC will do.

  • 16. brandall  |  July 11, 2014 at 7:41 am

    Pueblo County began issuing same-sex marriage licenses at 8 a.m.

  • 17. JayJonson  |  July 11, 2014 at 7:47 am

    Any information about the Colorado Supreme Court?

  • 18. Ragavendran  |  July 11, 2014 at 8:01 am

    Thank you!

  • 19. Chuck_in_PA  |  July 11, 2014 at 8:02 am

    5 Democratic appointees, 2 Republican appointees. A reputation for being somewhat conservative. Still the odds seem in our favor. I'd like the Colorado Supreme Court to decide the case in favor of ME on the basis of the State Constitution without having even to reach Federal issues. That way it could not be appealed to the US Supreme Court. Been a while since I've posted, but good to be back.

  • 20. JayJonson  |  July 11, 2014 at 8:03 am

    I just checked the Colorado Supreme Court website. Apparently, it is the next stop for the Attorney General since "The Supreme Court also has direct appellate jurisdiction over cases in which a statute has been held to be unconstitutional, cases involving decisions of the Public Utilities Commission, writs of habeas corpus, cases involving adjudication of water rights, summary proceedings initiated under the Election Code, and prosecutorial appeals concerning search and seizure questions in pending criminal proceedings. All of these appeals are filed directly with the Supreme Court, and, in these cases bypass the Court of Appeals."

    There seems to be an openly gay judge (Monica Marquez) and one who worked for the egregious William Bennett and George W. Bush (Allison Eid). At least two of the justices were appointed by Hickenlooper (William Hood and Brian Boatright). One appointed by Romer (Gregory Hobbs, Jr.).

    Does anyone know how politicized the judiciary is in Colorado? And what kind of reputation the Colorado Supreme Court has?

  • 21. JayJonson  |  July 11, 2014 at 8:09 am

    The openly gay Justice Marquez was appointed by a Democratic governor and the appointment was praised by Attorney General Suthers. From her Wikepedia page: "On August 24, 2010, the Colorado Supreme Court Nominating Commission selected Márquez as one of three candidates to replace Mary Mullarkey on the Colorado Supreme Court. On September 8, 2010, Democratic Governor Bill Ritter announced Márquez as his choice to replace Mullarkey. The appointment won praise from her former boss, Republican Colorado Attorney General John Suthers.

    Márquez is the first Latina and first openly gay person to serve on the Colorado Supreme Court. Her long-term partner is Sheila Barthel. She is one of eight openly LGBT judges serving on state supreme courts."

  • 22. brandall  |  July 11, 2014 at 8:32 am

    "There is no guarantee the high court will take the case when it returns in October"

    Can't Suthers request an immediate injunction to stop the clerks and then wait until October for the case to be taken and heard?
    http://www.leaderherald.com/page/content.detail/i

  • 23. StraightDave  |  July 11, 2014 at 8:32 am

    Isn't the marriage ban an amendment embedded in the state constitution? Not even the ultra-equality CA constitution could protect itself from a validly enacted amendment (Prop 8). I think CO will really need to rely on federal guarantees, unfortunately. But…. CO does not have to appeal the SC decision. The political pressure might become too great at that point.

    Hopefully, everyone can join forces, a la NM, and ask the CO SC to put them out of their misery quickly. If the AG really wants stability, uniformity, certainty, and less chaos he can go ask for it to be expedited and then not appeal further.

  • 24. Ragavendran  |  July 11, 2014 at 8:36 am

    Regarding the Hillary Hall case, the AG could have gone direct to the Supreme Court if he had wanted to in the first place, but he didn't do that. (Under Article VI Section 3 of the Colorado Constitution, "the supreme court shall give its opinion upon important questions upon solemn occasions when required by the governor, the senate, or the house of representatives; and all such opinions shall be published in connection with the reported decision of said court." Hopefully he has learned his lesson and at least now he will immediately go to the Supreme Court, bypassing the appeals court.

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  • 27. brandall  |  July 11, 2014 at 8:48 am

    Thank you for clarifying this. I was just reviewing Romer to see if any of those CO SC justices are still on the bench. Long gone.

    In the last week, there have been EoT'rs saying the CO SC was the end of the line. And obviously, in Romer that did not happen.

    I hope your comment will be read by everyone to understand the future options include SCOTUS. Of course, Suthers would not be able to get to SCOTUS until possibly Nov or Dec at the earliest. Not likely to happen.

  • 28. Randolph_Finder  |  July 11, 2014 at 8:58 am

    Yup. Looking at the map and "connecting" Hawaii to California and Alaska to Washington, New Mexico is the only ME state that doesn't border another one. Block of 4 on the Pacific, block of 3 in the Midwest and the Orgy that is the Northeast. :)

    (In the other direction, Alaska is the only non-ME state that doesn't "border" another one)

    "Lonely Boy"….

  • 29. Ragavendran  |  July 11, 2014 at 9:48 am

    In that statement, "high court" refers to the US Supreme Court. They are talking about the Utah appeal.

  • 30. JayJonson  |  July 11, 2014 at 9:54 am

    The California Supreme Court review of Prop 8 came before Windsor (and Judge Walker's decision re Prop 8). I think Windsor has changed everything. Had Windsor come down in 2008, I think the California Supreme Court would have invalidated Prop 8 as a violation of equal rights and due process. State courts also consider challenges based on federal rights. The rule is that states must offer at least the same protections as the federal constitution guarantees. So I suspect that the Colorado Supreme Court will invalidate the marriage ban just as, if I remember correctly, it invalidated Amendment 2. Romer arrived at SCOTUS on an appeal by the state after the Colorado Supreme Court invalidated Amendment 2.

  • 31. brandall  |  July 11, 2014 at 9:54 am

    Thank you. Geez…talk about confusing.

  • 32. StraightDave  |  July 11, 2014 at 10:06 am

    I agree with all that. The federal guarantees have certainly become stronger since Windsor. My main point was that, by relying on those guarantees, it leaves the door open for a subsequent appeal to SCOTUS. This is no way around that, since you can't claim the CO Const violates the CO Const. We have to depend on Suthers finally seeing the light after the CO SC smacks him down.

    (If I didn't spell it out fully, a CO case decided solely on CO law can't be appealed to SCOTUS. But we won't have that situation here.)

  • 33. JayJonson  |  July 11, 2014 at 11:17 am

    I understand your point, but Suthers is not required to appeal an adverse (from his point of view) Colorado Supreme Court ruling even if it is based on federal issues as well as state ones. There is mounting pressure on him drop the appeal right now, which he is not likely to do. But if the state supreme court rules against him, he will be able to save face when he declines to spend more tax money defending a position that is unpopular in Colorado by going to SCOTUS.

  • 34. Bruno71  |  July 11, 2014 at 11:22 am

    OTOH, if he really doesn't want ME to come to Colorado, he would likely "justify" an appeal to SCOTUS by saying they should have the last say on it. That would then leave it until SCOTUS either decides or denies cert on the appeal in Kitchen .

  • 35. Bruno71  |  July 11, 2014 at 11:26 am

    I was encouraged by the fact the 7th Circuit told Indiana to recognize the marriage of that one couple. That just doesn't seem like something a court does if it feels that marriage will be later unrecognized as a result of its own ruling in the future.

  • 36. Bruno71  |  July 11, 2014 at 11:46 am

    I'm not so worried about your scenario. We talk about circuit splits in relation to the ME cases because SCOTUS' hesitancy to address the issue nationally is so based on timing (i.e. not wanting to get ahead of public opinion). I'm not sure that's the case with the subject of this "therapy." The fact that they denied cert on the case out of California leaves me optimistic that the votes aren't there to reverse these laws. If the 3rd gives us an adverse ruling (and I really do doubt that regardless of how crappy the state lawyer was), they'll take the case and rule in our favor.

  • 37. SeattleRobin  |  July 11, 2014 at 12:35 pm

    I just listened to it, and I agree that the middle section was painful, both in how the judges came across as completely dense and in the state's attorney not handling some of the questions well. Some of her pauses seemed to come from her being flummoxed by the judges apparently not grasping her clearly worded answers. But there were some pauses that seemed to indicate she was not properly prepared to cite cases.

    I questioned if the judges were as dumb as they sound too. There's a certain amount of playing coy to make the attorneys work to prove their case that's expected, and also a certain amount of playing devil's advocate. But this went way beyond those.

    The female judge (I don't know any of the names) seemed especially dense. But she did also keep asking a question that I do think is important to their deliberations, that she never got an answer to. That was, precisely what is done in the talk therapy to attempt to change someone's orientation. A concrete example better supports the distinction between protected communication with a therapist, and talk that is actually conduct/treatment. While the given answer that the therapists themselves know is accurate, and supported by the use of signed consent forms, that hardly helps a judge in deliberations.

    Going just by the hearing it sounds like the state law has no chance. I'm hoping that the judges were playing stupid and that the briefs were enough to convince at least two of them of what should be obvious to almost anyone. That being, regardless of the type of talk therapy, that the state has a right to regulate it as treatment under their professional standards. The second attorney on our side did point out that other talk subjects are already regulated in the mental health field, but it didn't seem like enough was made of that during argument.

  • 38. ebohlman  |  July 11, 2014 at 3:43 pm

    According to http://judgepedia.org/Political_outlook_of_state_… CO's Supreme Court is slightly left of center and ideologically indistinguishable from CA, IL, and NY.

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