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Friday, July 11, 2014

Ind. Decisions - Moves today in 7th Circuit same-sex marriage appeals

Two moves today in the 7th Circuit same-sex marriage appeals.

This ILB post earlier today headed "Wisconsin appeals ruling allowing gay marriages" sets the stage for the Wisconsin motion asking the 7th Circuit to expedite its appeal and consolidate it for oral argument with Indiana's appeal in Baskin v. Bogan. Although the Wisconsin district court ruled nearly three weeks before the Indiana court, Wisconsin's appeal to the 7th Circuit got a very late start, and was filed only yesterday.

More interesting to me is the motion filed today by Indiana AG Zoeller, seeking to skip the three-judge panel and instead hold the initial hearing before the 7th Circuit en banc. As I asked earlier today of the attorney who tipped me to expect the motion and said he thought the reasoning behind the move was that AG wanted to get to the SCOTUS first:

ILB - "What's the point? Assuming he loses to a 3-judge panel, can't he just skip en banc anyway. That is what Utah did, I believe."

Att. - "He could skip en banc but he must feel his chances are better en banc. A similar request made by Ohio in the 6th Cir., but was denied. He'll need 6 to reverse, won't he?"

ILB - "Yes, from WOOD, Chief Judge, and POSNER, FLAUM, EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, TINDER, and HAMILTON. I think he is being unrealistic ... Which six of these judges want to go down in history as voting against same-sex marriage?"

And this just in as I'm writing this post:"7th circuit just granted Wisconsin plaintiffs' motion to consolidate with Indiana cases."

[More] I've now reviewed Ind.'s en banc motion. The stated reason given for going directly to en banc is the "extreme importance" of the case. There is also an appeal to the egos of the judges:

Regardless how this case comes out, the Court’s decision and the views of its members, whether communicated in majority, concurring, or dissenting opinions, will impact not only national discussion of the issue but also ultimate Supreme Court resolution. If all members of the Court wish to bring their views to bear on ultimate resolution of this critical issue, this may be the only realistic opportunity. Accordingly, en banc consideration of this appeal in the first instance is fully justified.
In addition, Zoeller's petition does take into account the pending Wisconsin motion to consolidate, stating:
The Wolf appeal underscores the need for the entire Court to review the traditional marriage issue at the outset. If a separate panel considers that case, it might reach a conclusion different from the panel in this case. And depending on which case is decided first, one panel would need to grapple with the circuit precedent created by the other. On the other hand, if the same panel considers both cases, that circumstance would only reinforce concerns that circuit precedent on one of the most fundamental and monumental constitutional issues of our time has been made by but one-third of the Court’s members. The most equitable resolution for all concerned is for the en banc Court to consider these matters.

While three-judge panels rather than all Court members must of necessity decide even the highest-stakes, most nationally important issues in the vast, vast majority of cases, the same-sex marriage issue is different. Marriage, the basic unit of society, carries untold influence across the legal spectrum. This case asks the Court not simply to decide an important matter of constitutional law, but to adjudge whether an institution integral to all of Western Civilization for millennia must now undergo fundamental transformation in its legal dimension in the face of changing social mores.

Posted by Marcia Oddi on July 11, 2014 06:37 PM
Posted to Ind. (7th Cir.) Decisions