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READ IT HERE: Final Seventh Circuit brief in Indiana same-sex marriage case

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The officials defending Indiana’s same-sex marriage ban have filed their reply brief in the Seventh Circuit Court of Appeals.

The officials’ first brief, and the plaintiffs’ brief, are both linked here.

The case will be argued in the Seventh Circuit on August 26, along with an appeal in a similar case from Wisconsin.

Here’s the filing, thanks to Equality Case Files:

14:2386 #198 by Equality Case Files


  • 1. brandall  |  August 12, 2014 at 10:30 am

    This brief is very lame when compared to others I have read this year. It is solely based on the procreation argument with the usual Baker controls, there is no animus (so no scrutiny is required) and Windsor says marriages are regulated by the state.

    "Regulating marriage is for providing the optimal environment for parenting that the State has a right to regulate. Plaintiff’s contend marriage is not an institution, but an entitlement. …Indiana’s marriage definition is valid if rationally related to a legitimate government purpose."

    Here is the entire crux of their argument and this is the really twisted part: There is a "compelling state need to encourage potentially procreative couples to stay together for the sake of raising children that may result from their sexual intercourse. Same-sex couples do not implicate that interest, so the State need not regulate them.”

    In other words, same-sex couples can never procreate, therefore we do need to regulate them, so they are banned from having to be regulated with a marriage license. I don’t believe I seen a brief where this is the sole basis of their argument.

    So, how did the State deal with opposite sex couples who don't procreate? In a FOOTNOTE of course:

    "Plaintiffs insist that marriage among the infertile and elderly confound the State’s responsible procreation rationale. But infertility is often unknown until after marriage, and regardless, civil marriage does its regulatory work by deterring seriatim sexual relationships by a fertile member of an infertile couple. The same is true with respect to the elderly, considering that men on average do not experience substantial fertility issues until age 60."

  • 2. DoctorHeimlich  |  August 12, 2014 at 11:02 am

    Bear in mind that this is a reply brief. They've already made their main case, and (in theory) this brief is just trying to refute arguments that our side made which their original brief may not have adequately addressed.

    Not that this perspective really improves their brief or their arguments much. They looked at what our side wrote, and decided that their best reply was "Windsor didn't say that, Baker, new right that isn't traditional, procreation, blah, blah, blah."

  • 3. brandall  |  August 12, 2014 at 11:17 am

    I agree with you. But, to your comment "their original brief may not have adequately addressed." …So, this brief must tie up all the loose ends. It is still one of the lamest reply briefs of the year.

    I did a further check on their footnote sentence: "civil marriage does its regulatory work by deterring seriatim sexual relationships by a fertile member of an infertile couple."

    Translating the Latin for seriatim give us "one after another." In plain English, the State regulations lessen the chance of a breeding spouse having outside sex when their spouse can't produce a child. /EyeRoll

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


    Thank you for clearing up that footnote. I still don't understand it. Why don't they just pass a law prohibiting "seriatim sexual relationships by a fertile member of an infertile couple"?

  • 5. brandall  |  August 12, 2014 at 12:49 pm

    I'm sure they can use Baker to find a way. After all, they are all incorrectly applying Baker anyway.

  • 6. davepCA  |  August 12, 2014 at 12:59 pm

    And if THAT were a legitimate argument ('marriage is for discouraging people from unintentionally procreating outside their relationship'), it would apply equally to either member of a SAME sex couple as well, since any fertile member of such a couple could just as easily procreate with an opposite sex person outside their same sex relationship.

    Here we see those earlier 'arguments' from the opposition about 'orientation is too fluid to be considered a distinct class' coming back to bite them, and, once again, their argument offers no rational reason for the law to treat these two types of couples differently.

  • 7. Mike_Baltimore  |  August 12, 2014 at 12:29 pm

    One of my nephews got married in the mid-1990s. To date, although he is medically capable of having children, he is childless.

    Indiana does not keep track of divorces (by jurisdiction), but as recently as about 10 years ago, most researchers figured that one of Indiana's Eastern counties (if I remember correctly, South of Randolph County) almost assuredly had the highest divorce rate in the nation (even higher than any county in Nevada, the state most people think has an extremely high divorce rate, probably the highest in the nation). I haven't seen recent estimates, so it might still have the highest divorce rate.

  • 8. sfbob  |  August 12, 2014 at 3:30 pm

    I hope nobody will be annoyed if I repeat an observation I made here a number of months ago. Relying on Nancy Cott's "Public Vows" (a must-read, IMHO), during the mid-19th Century Indiana was the go-to place for a quickie divorce, quite similar to the role played in more recent times by Nevada until the advent of no-fault divorce laws.

  • 9. RemC_in_Chicago  |  August 12, 2014 at 10:44 am

    To which I would respond that many same-sex couples are devoting their lives and resources to raising children abandoned by their biological parents, so there's plenty implication to go around. Not to mention all the other rational points against this argument…The message I'm getting is: we're going to punish you, you same-sex couples who planned and worked hard and went through hell to adopt and deliberately be parents, and award the irresponsible couple who got accidentally pregnant with all the benefits that marriage allows. Because.

  • 10. hopalongcassidy  |  August 12, 2014 at 1:06 pm

    Some people seem to be of the opinion that even an UNWANTED child (which, I am pretty sure only comes to opposite-gender couples…married 'traditionally' or not) is still 'better off' than one that IS wanted by a same sex couple (who I am pretty damn sure never have an unwanted one.) It just seems so absurd.

  • 11. StraightDave  |  August 12, 2014 at 2:39 pm

    Doesn't the accidental pregnancy argument actually encourage and promote irresponsible procreation, by effectively bailing out the negligent couple? If you wanted to discourage such behavior, I would think that disallowing their marriage (and its benefits) might have a lot more impact. "You don't get all the status and bennies of marriage unless you get all your ducks lined up in the right order." You just watch how fast things will change when a penalty is attached.

    This just shows how broken the states' arguments are. Their actions help produce the opposite of what they claim their interests are.

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

    Those who crafted these arguments ("not those of serious people" as Judge Heyburn would have it) knew they were reaching to begin with. Each time they're repeated they seem even more ludicrous, particularly when it' shown how there is no rational connection between the supposed intent and the actual consequences.

  • 13. RnL2008  |  August 12, 2014 at 11:28 am

    Same old lame replies…….and expecting a different result is what one calls RIDICULOUS!!!

    The person who wrote this reply brief also sounds angry that they have to justify their anti-gay hatred at all.

    Hope the 7th Justices see right though this garbage!!!

  • 14. mariothinks  |  August 12, 2014 at 11:30 am

    Have the judges been chosen for oral arguments?

  • 15. brandall  |  August 12, 2014 at 11:34 am


    4th root post from Micha1976 and subsequent comments.

  • 16. DoctorHeimlich  |  August 12, 2014 at 11:48 am

    It's possible (though cumbersome) to link directly to a comment. You have to view the commenter's profile, and then in the full list of their comments, follow the link BACK to the post you want to link to.

    For example:

  • 17. brandall  |  August 12, 2014 at 12:17 pm

    Very helpful. I will start using this when needed.

  • 18. brandall  |  August 12, 2014 at 12:40 pm

    Iranian Surprise: We Have Gay People

    President Ahmadinejad in 2007 "We don't have homosexuals, like in your country. I don't know who told you that.”

    Iranian Government Study in 2014: "We have 24,140 students stating they are homosexual" according to a study conducted by researchers for Parliament.

    "The study shown to Parliament recommended they [heterosexual couples] should be allowed publicly to register their union by using sigheh, an ancient practice in Shia Islam that lets people marry temporarily. A legal but loose and much-deprecated arrangement, which can last from a few hours to decades, sigheh is often viewed as a cover for promiscuity or prostitution."

    Nothing in this overall interesting article on how to legally treat their LGBT population other than their current offensive Islamic laws.

  • 19. RobW303  |  August 12, 2014 at 2:06 pm

    Soon, Iran will have 24,140 fewer breathing citizens.

  • 20. hopalongcassidy  |  August 12, 2014 at 12:51 pm

    Well,hell…a significant proportion of "traditional" American marriages are just state-approved prostitution. I doubt there are any countries where that isn't common, although I do believe the term "sugar daddy" is unique to our own. Maybe not. 😉

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