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READ IT HERE: Final brief in Seventh Circuit challenge to Wisconsin same-sex marriage ban

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Wisconsin officials’ reply brief in the Seventh Circuit challenge to Wisconsin’s same-sex marriage ban has been filed.

The opening brief can be found here. The plaintiffs’ brief can be found here.

The case will be argued along with challenges to Indiana’s same-sex marriage ban (the briefs in that case can be found here.)

Here is the filing, thanks to Equality Case Files:

14-2526 #153 Defendants' Reply Brief by Equality Case Files


  • 1. brandall  |  August 12, 2014 at 2:16 pm

    And once all of you have spent the entire day reading all of these other briefs filed today, here's the pro-ME religious organizations amici brief reminding the court religious tradition can't be invoked and there is clearly no danger of ME forcing churches to perform ME marriages.

  • 2. robbyinflorida  |  August 12, 2014 at 7:53 pm

    Wow. This same brief should be rewritten when SCOTUS takes up ME.

  • 3. SWB1987  |  August 12, 2014 at 3:25 pm

    When will we know who the judges are?

  • 4. Zack12  |  August 12, 2014 at 3:27 pm

    THe day of, let's just hope Richard Posner is one of the judges.

  • 5. DoctorHeimlich  |  August 12, 2014 at 3:28 pm

  • 6. Leeaundra  |  August 12, 2014 at 9:16 pm

    I'm not so sure the panel isn't already chosen. Posner, Williams (Clinton), and Hammond (Obama) have been handling the motions for the cases so far. In my experience, once a panel begins with a case in the 7th circuit, that panels sees it through. I am almost certain this is why the defendants wanted an initial en banc review instead of this panel. I could be wrong, but I don't think I am.

  • 7. Ragavendran  |  August 12, 2014 at 9:23 pm

    The Seventh could have different rules, but generally, a separate motions panel handles most pre-argument motions such as emergency stays, extensions of time, etc. for all appeals. The composition of this panel rotates monthly or so. On the other hand, on a case-by-case basis, a merits panel is drawn closer to the argument. There is no point in waiting for the day or argument to "reveal" the identity of the merits panel if, as a rule, it is the same panel that handles the motions of that case. Like I said, I don't know if the Seventh Circuit has different rules, but regardless of what the identity of the panel is, for sure it has been chosen by now – they need time to read the briefs before sitting for argument.

  • 8. ebohlman  |  August 13, 2014 at 12:57 am

    The Seventh has a rule that allows a motions panel to request to be named as the merits panel for a case that came to it, though it's not mandatory.

  • 9. andrewofca  |  August 12, 2014 at 11:21 pm

    i hope you're right too

  • 10. SWB1987  |  August 12, 2014 at 3:28 pm

    I have a horrible feeling about these cases. The democrat to republican nominee proportion is very heavily republican. Even more so than the 6th.

  • 11. Bruno71  |  August 12, 2014 at 4:38 pm

    The 7th previously ordered that one of the Indiana couples' marriages be immediately recognized. That is a very good sign that they expect the case to go in our favor, in my opinion.

  • 12. Ragavendran  |  August 12, 2014 at 8:52 pm

    Posner was on that motions panel. I really hope we've drawn him and maybe more from that panel.

  • 13. Bruno71  |  August 13, 2014 at 9:38 am

    Even if not, he and the others on that panel likely have an idea how the entire bench feels on the issue. But what happens if they do rule against us? Would they issue an order reversing the requirement for Indiana to recognize the marriage? Unimaginable.

  • 14. Zack12  |  August 12, 2014 at 4:45 pm

    It depends which Republicans we get.
    A panel where we get Frank Easterbrook and Diane Sykes would not be a good thing.
    One with Richard Posner on it would likely be better.
    If nothing else, he HATES Scalia with a passion.

  • 15. Altonfree  |  August 12, 2014 at 8:05 pm

    Honestly, at this point, no further court decisions matter either way. If we win, the ruling will be stayed. If we lose, we appeal to the Supreme Court….were all these cases are headed. If all goes well, they'll hear a case next session, and rule by June. Any court decisions between now and then are just window dressing.

  • 16. SeattleRobin  |  August 13, 2014 at 5:22 am

    You're right to an extent. But another appellate court decision in our favor makes it even more difficult for SCOTUS to buck the trend. So another win still works for us in a less tangible way.

  • 17. NorthernAspect  |  August 14, 2014 at 3:29 am

    The Fourth Circuit Court of Appeals refused to stay their ruling striking down the marriage bans- so maybe not.

  • 18. brandall  |  August 12, 2014 at 4:27 pm

    UT: Evans – The 10th Circuit Court of Appeals set a Sept. 22 deadline Tuesday for the state to appeal a lower court ruling in Evans v. Utah.

    This is the case about the disposition of marriages that happened between the Kitchen decision and the SCOTUS stay.

  • 19. Ragavendran  |  August 12, 2014 at 8:55 pm

    I think you mean the opening brief by the State of Utah (Appellant) is due September 22. That's what it says on PACER.

  • 20. Marriage Equality Round-U&hellip  |  August 13, 2014 at 7:01 am

    […] USA, Wisconsin: The state’s reply brief in the Seventh Circuit challenge to Wisconsin’s same-sex marriage ban has been filed. full story […]

  • 21. JayJonson  |  August 13, 2014 at 7:54 am

    Off-topic but relevant is a New York Times article about a study by Cass Sunstein on whether unanimous Supreme Court rulings are more accepted by the public than 5-4 decisions. The relevance derives from the fact that the SCOTUS decision on marriage equality will almost certainly be, like the SCOTUS decision in Windsor, 5-4. Sunstein found, however, that “the idea that 5-4 decisions pose a serious problem of credibility or legitimacy remains an unproven hypothesis.”

  • 22. Marriage Equality Round-U&hellip  |  August 13, 2014 at 8:23 am

    […] USA, Wisconsin: The state’s reply brief in the Seventh Circuit challenge to Wisconsin’s same-sex marriage ban has been filed. full story […]

  • 23. Margo Schulter  |  August 13, 2014 at 12:12 pm

    SeattleRobin, I agree with your point that SCOTUS may want to get the views of as many circuits as possible, with the Seventh certainly important. Having the Seventh on our side could be especially helpful if we lose 2-1 in the Sixth — although I haven’t given up on Judge Sutton!

    One thing that Wisconsin seems to have done in its opening brief, at least, is to present its positive/negative rights theory as an attempt to woo Judge Posner where he may have been in 1997 or 2002, pre-Lawrence. But by 2012, still pre-Windsor, he had reached the perspective in his rightfully often-linked blog article suggesting that the only real rationale for opposing marriage equality was moral or specifically religious disapproval.

    In fact, Wisconsin uses its “positive/negative” rights argument at one point in the brief to argue that moral “disapproval” is a legitimate reason for denying the “positive” state approval of a marriage license, although it would be unconstitutional to interfere with the couple’s “negative” liberty rights by arresting them for sodomy under Lawrence. That’s pretty much a confession of animus right there.

    What they miss is both Judge Posner’s more recent position as expressed in his blog entry, and the fact that the LovingZablockiTurner line of marriage cases certainly establish marriage as a “fundamental right.” I’m about to read the brief of the plaintiffs, which looks like it covers this and more excellently.

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