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Indiana, Wisconsin ask Supreme Court to hear marriage equality cases; same-sex couples file briefs agreeing Court should take it up

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It's time for marriage equality. Attribution: JEWEL SAMAD/AFP/Getty Images
It’s time for marriage equality. Attribution: JEWEL SAMAD/AFP/Getty Images
UPDATE: We’ve added the petition from Wisconsin.

UPDATE: I’ve added the response briefs from the Indiana and Wisconsin plaintiffs supporting review.

Asserting that “[t]here can be little doubt about the cert-worthiness of the issues presented in this case,” and that “[t]he main question at this point is which case or cases present the best vehicle(s) for the efficient and complete resolution of these issues that the Nation needs,” Indiana officials are asking the Supreme Court to take up the Seventh Circuit’s opinion, written by Judge Richard Posner just days ago.

The petition points out that the Seventh Circuit’s decision differs from others from the Tenth and Fourth:

The Seventh Circuit invalidated Indiana’s law on equal protection grounds only, on the grounds that traditional marriage definitions discriminate against homosexuals. In that regard it stands in conflict with the reasoning and result in Citizens for Equal Protection v. Bruning, 455 F.3d 859, 868-69 (8th Cir. 2006), but, perhaps more important, it provides an equal protection foil to the fundamental-rights methodology used to strike down States’ laws in the other same-sex marriage cases pending before the Court, Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014), Bishop v. Smith, Nos. 14-5003, 14-5006, 2014 WL 3537847 (10th Cir. July 18, 2014), and Bostic v. Schaefer, Nos. 14-1167, 14-1169, 14-1173, 2014 WL 3702493 (4th Cir. July 28, 2014).

The state officials had 90 days to file its petition but it needed only a few.

Wisconsin’s attorney general has also asked the Court to review the Seventh Circuit decision, which applied to both states. The main thing that sets the Wisconsin petition apart from the others is a unique Due Process Clause argument:

Unlike any other state involved in a traditional marriage laws challenge, Wisconsin has presented a theory based upon the idea that the Fourteenth Amendment’s Due Process Clause is not a charter of positive rights for citizens. Instead, the Fourteenth Amendment — through the Due Process Clause — prevents government intrusion into citizens’ lives and confers no positive, tangible benefits on citizens or corresponding obligations upon government.

The plaintiffs in Baskin, the Indiana case, filed their response to the petition today, urging the Court to grant review:

Despite the correctness of the ruling below, Respondents agree that the Court should grant review in this case because the issue is of fundamental importance to Respondents and the country as a whole, because this Court and other courts have granted stays of similar lower court judgments pending review by this Court, and because final relief for Respondents is not likely to come until this Court decides these constitutional issues. This case is an excellent vehicle for resolving the constitutional questions raised here.

A response was filed in the Wisconsin case later in the day, urging the Court to hear the case.

The Supreme Court is set to consider whether to take up five other petitions, from Utah, Virginia, and Oklahoma.

Thanks to Equality Case Files for these filings

21 Comments

  • 1. JayJonson  |  September 9, 2014 at 9:49 am

    Since the attorneys for Indiana and Wisconsin were so ill-prepared at the appellate hearing, I hope they succeed in winning the right to repeat the states' idiocy for the edification of SCOTUS as well.

  • 2. tigris26  |  September 9, 2014 at 9:58 am

    So, was the 7th Circuit Court the first among the other Federal Courts to rule on the basis of equal protection? Sorry, I am not as informed about the 4th and 10th Circuit Court decisions.

    I was just curious to know what the consensus has been amongst all the court decisions regarding the basis of state bans being unconstitutional. Which is ruled more on – "equal protection" or "fundamental right"? I know people feel the 9th Circuit Court could make a decision using either one.

    I appreciate any help clearing this up! Thanks!

  • 3. Scottie Thomaston  |  September 9, 2014 at 10:29 am

    Courts have mostly been using the due process/fundamental rights analysis. I'm not totally sure if the Seventh was the only one to use the EPC. Can't remember for certain.

  • 4. ebohlman  |  September 9, 2014 at 11:29 am

    The unappealed OR and PA decisions used equal protection., as did the KY celebration decision (Love v. Beshear).

  • 5. exNoCali  |  September 9, 2014 at 11:55 am

    Does someone have handy the timetable for getting a complete petiton to SCOTUS this month in order for it to be considered at the long conference? I remember seeing it in one of the other threads, and even thought about making a note, but alas…

  • 6. andrewofca  |  September 9, 2014 at 11:58 am

    The Oregon ruling was solely equal protection.

  • 7. Ragavendran  |  September 9, 2014 at 12:11 pm

    Here you go: http://www.supremecourt.gov/casedistribution/case

  • 8. franklinsewell  |  September 9, 2014 at 12:23 pm

    Right, but as ebohlman points out, the state defendants did not appeal those decisions, and therefore the sole EP argument hasn't made it to the Supremes until now.

  • 9. exNoCali  |  September 9, 2014 at 12:38 pm

    Thank you! And of course, I am not the least bit surprised that you would remember this bit of knowledge off-hand :-)

  • 10. DoctorHeimlich  |  September 9, 2014 at 1:33 pm

    The sudden pace of these cases is incredible (if not at all surprising). 9 days from oral arguments to a ruling by the Seventh Circuit. One week from that to a petition to SCOTUS. A reply from the opposing side on the same day? Clearly, the lawyers here are refusing to yield the limelight to Utah, Oklahoma, and Virginia. They want a shot at making history too.

    I feel a bit of concern regarding Indiana here. Their ban is by statute and not by state constitution. I have to wonder (in my "not a lawyer" state of uncertainty) if that leaves any room for a possible ruling on their case that might somehow NOT reach the question of whether state constitutional bans violate the U.S. Constitution. Maybe (hopefully) I'm just being paranoid.

  • 11. Ragavendran  |  September 9, 2014 at 2:18 pm

    Aw, thanks. I didn't remember it exactly – in fact, I am pretty bad at remembering stuff. I just do fairly well in searching for things in Google the right way to get the best results :)

  • 12. Ragavendran  |  September 9, 2014 at 2:23 pm

    I'm stunned, to be honest, at the cert petition and response filed on the same day! Obviously, there must have been some coordination between the four sides in these two cases, but that doesn't take away from the surprise of this rare event.

    I thought about that too, but IMHO – and IANALE – the question is whether state law can do these things, and it shouldn't matter if the law is statutory or constitutional. The only difference is that if it is constitutional, it was voted for by the people. So if SCOTUS takes up Indiana's case alone and rules solely that legislature can't do something like this, just like the federal Government did in DOMA, that could still leave open the question of whether if the people had voted for it, the outcome might have been different. But every step of this hypothetical situation seems more unlikely than the previous ones!

  • 13. Margo Schulter  |  September 9, 2014 at 2:33 pm

    As I understand it, the Fourth and Tenth Circuits ruled that the right of marriage is fundamental regardless of the sexes of the two partners, activating strict scrutiny of the bans under the Equal Protection Clause (a compelling governmental interest and a narrowly tailored remedy to satisfy this interest. It’s basically the same standard used in cases of classifications by race, and the Utah, Oklahoma, and Virginia statutes not so surprisingly failed it. So it’s the Equal Protection Clause, but with restriction of a fundamental right under the Due Process Clause triggering strict scrutiny.

    In the Seventh Circuit, as has often been observed here and elsewhere, the Court didn’t address the question of a fundamental right to marry, but stuck to Equal Protection alone. Judge Posner, maybe in a Kennedyesque manner, didn’t get caught up in the traditional tiers of scrutiny (strict, intermediate as with gender, and rational basis), but weighed costs and benefits.

    Both the importance of marriage to same-sex couples and especially any children they may have by adoption or through assisted reproduction, and the totally inconsequential “benefits” of discrimination as alleged by Wisconsin and Indiana, lead to the conclusion that the Equal Protection Clause is being violated, and thus the bans are unconstitutional.

    So even in the pure equal protection approach, the “weight” of marriage and its pervasive role in the lives of partners, and in the parent-child relationship, tends to tip the scales toward the unconstitutionality of the bans — as the fundamental rights approach does in more of a “digital” way (i.e. “marriage is a fundamental right, so strict scrutiny applies”). Judge Posner is being more “analogue,” maybe also Justice Kennedy’s preference.

  • 14. gmeot  |  September 9, 2014 at 3:29 pm

    Raga, I wonder if you have an opinion on the following scenario. Suppose we lose in the SCOTUS on some federalism grounds. What would happen to states like Oregon or Penn?

    In Oregon the case effectively ended without appeal, so I wonder if a future decision against us could be applied to a state where the case never reached the SC … Same for California. Can the SC reverse a case which technically never got to them? Or maybe whatever decision could only be applied to just the states that have litigation pending?

  • 15. Ragavendran  |  September 9, 2014 at 3:56 pm

    The Supreme Court can only directly decide the cases that they grant cert to. But, their opinion and rationale would apply to similarly situated cases across the entire country, and therefore, depending on what case(s) they take and how broadly they rule, they could end all pending marriage litigation in the country.

    If they ruled that states can constitutionally ban marriage between people of the same sex, then that becomes the law of the country. While pending lawsuits will be resolved accordingly, the closed cases don't automatically come to life and get reversed. Yes, such an adverse ruling would be law in states like CA, OR, PA too. But for that law to have a chance of affecting those states, the following conditions must apply:

    (1) the state's law that bans same-sex marriage must still be on the books (statute or constitution), even though it was rendered unenforceable by an injunction.
    (2) fresh litigation would be needed (and no doubt NOM and its allies will see to it) to overturn such a permanent injunction and let the existing law come back into force.

    Even if (1) and (2) apply, it is up to the judges to determine whether it is legal to "withdraw rights already granted" and to what extent. For example, perhaps they decide that yes, the bans can come back into force and it would be up to the legislature/people to repeal them now, BUT, marriages that existed will continue to exist and not be voided. This would be such a big mess of a situation, and I strongly believe that Justice Kennedy will not let us down and will rule in favor of ME next year.

    Again, I end with IANAL and my understanding may be wrong – I'm sure this scenario has been discussed a while ago and several time here on this forum. Please feel free to correct/clarify me.

  • 16. RnL2008  |  September 10, 2014 at 12:41 am

    My question is why does it matter that the 7th made their ruling a little different than the either the 4th of the 10th? The fact remains that overall the 7th, 4th, 10th and probably the 9th all came to the same basic conclusion and that is it's UNCONSTITUTIONAL to deny Gays and Lesbians their FUNDAMENTAL RIGHT to marry the person of there choosing and by denying Gays and Lesbians their right to marry will NOT have any affect on heterosexuals being more responsible with regards to procreation or staying together for the children!!!

  • 17. Sagesse  |  September 10, 2014 at 4:00 am

    Marriage equality will come nationwide from the Supreme Court. The legal reasoning matters because a 'fundamental right' win applies to marriage equality only. Heightened scrutiny would doom LGBT discrimination in any form, and put sexual orientation discrimination on a stronger footing against 'religious liberty' claims. The states that have marriage bans tend not to have anti-discrimination protection for sexual orientation. It matters also because all of the Supreme Court's LGBT rights rulings are 'scrutiny' based, in an obscure way, but still. Expanding that reasoning to marriage is taking a bigger step, legally, than a 'fundamental right' ruling would. The ultimate outcome would be the same, eventually.

  • 18. ebohlman  |  September 10, 2014 at 6:21 am

    But note that heightened scrutiny does not by itself create protections against discrimination by private actors; such protections are statutory, not constitutional. Congress and state legislatures have the Constitutional authority to enact them, but this is permissive, not mandatory. Per Romer, neither the States nor the Federal government can enact provisions that single out groups and make it more difficult for them to seek statutory protections, but that's about it.

    An illustration I've used several times: disability is only subject to at most "rational basis with teeth" scrutiny (Cleburne) yet I could name at least six Federal statutes barring disability-based discrimination right off the top of my head. Legitimacy of parentage is subject to intermediate scrutiny, yet I'm not aware of any statutes prohibiting private actors from discriminating against "bastards".

  • 19. Sagesse  |  September 10, 2014 at 6:39 am

    Very true. But it sends a message. (EEP! I feel like I'm channelling Monte Stewart…)

  • 20. TimATLGA  |  September 10, 2014 at 9:12 am

    So which stick would that be? lol

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