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Wednesday, July 16, 2014

Ind. Decisions - Anything new in Indiana's appeal to the 7th Circuit of Judge Young's ruling? [Updated with more speculation on en banc]

7th Circuit held a conference call with parties to Indiana same-sex marriage case at 4PM today, to work out details. [Update: wrong, this was bad info]

Here is the State of Indiana brief in Baskin v. Borgan, filed Tuesday.

Here is what the Fort Wayne Journal Gazette wrote about the brief yesterday:

INDIANAPOLIS – Indiana has outlined its reasons for appealing a federal judge’s decision that struck down the state’s gay marriage ban.

The state’s arguments appear in a brief filed Tuesday with the 7th U.S. Circuit Court of Appeals in Chicago. It repeats the same arguments the state has made previously, essentially that regulating marriage should be up to the state, which has a legitimate interest in promoting traditional marriage.

The appellate court consolidated Indiana’s case with a similar case from Wisconsin on Monday and put them on a fast track.

Both states have requested that all 10 judges on the 7th Circuit Court of Appeals hear the cases.

Check back for any additional details from today's conference call. [Update: See above correction]

[Updated at 4:39 PM] The new Court ORDER:

The court, on its own motion, ORDERS that oral argument in this appeal set for Wednesday, 08/13/2014 is VACATED. CF [6590621] [14-2386, 14-2526, 14-2387, 14-2388] (RS)
What does this mean? It could mean the Court is going to accommodate the Wisconsin appeal, as you will recall, Wisconsin jumped in late, and would have little time to participate without some changes in the timetable.

It could mean the Court is considering the en banc option, but I still believe that is unlikely, although it could be good for plaintiffs.

[Updated at 7:07] A reader points out that when it appears a three-judge panel will enter an opinion that would cause a circuit split, the panel will offer, as Judge Tinder wrote earlier this week in a footnote on p. 10 of U.S. v. Harden:

Because this opinion creates a split among circuits, we circulated it in advance of publication to all judges of this court in regular active service, pursuant to Circuit Rule 40(e). None voted to hear the case en banc.
There currently is only one circuit court opinion in the same sex marriage cases, that of the 10th Circuit. So only if a panel voted to reverse Judge Young's SD Indiana opinion would there be the chance of a circuit split. Per the reader:
So, if the case is heard by a panel that decides to rule for the State, presumably an opportunity to hear the case en banc would be presented to all judges before the panel opinion is issued. If the panel rules against the State, no such opportunity would be presented.

Posted by Marcia Oddi on July 16, 2014 04:13 PM
Posted to Ind Fed D.Ct. Decisions