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Tuesday, September 09, 2014

Ind. courts - Today Indiana files with SCOTUS for review of 7th Circuit's same-sex marriage opinion

Wasting no time, today Attorney General Zoeller has filed a 57-page petition for writ of certiorari in Brogan v. Baskin. Some of the arguments presented on behalf of the State of Indiana:

I. These Cases Present the Most Worry- Free, Comprehensive Vehicle Yet for Review of Core Same-Sex Marriage Issues

This case may present the cleanest vehicle yet for the Court to resolve core same-sex marriage issues. There are no defendant standing issues to distract from the core legal issues, and full redress is possible because Petitioners include not only a county clerk who issues marriage licenses, but also state officials with actual authority to confer concrete benefits of recognition (rather than mere general supervisory authority) in the event Respondents prevail. And the State’s Attorney General, rather than attacking his own State’s traditional marriage law, provides a robust defense of the law. What is more, both licensure of in-state marriages and recognition of out-of-state marriages have been thoroughly briefed and argued, and Indiana does not offer same-sex couples a marriage-substitute such as domestic partnerships or civil unions that could complicate evaluation of the marriage issue.

II. The Unorthodox, Overtly Policy-Driven Analysis of the Decision Below Warrants Direct Review

Another reason for using this case to address the two core same-sex marriage issues is that the decision below strayed far from this Court’s Fourteenth Amendment doctrine. The Seventh Circuit, in an opinion by Judge Posner, expressly created its own four-part equal protection framework that presupposed the existence of the right being claimed and the existence of the classification being contested, declared that some nebulous form of heightened scrutiny applied, relied on the untested assertions of various amici “experts,” and all at once declared that Indiana’s traditional marriage definition also fails rational basis. Even aside from the Court’s ultimate resolution of the same-sex marriage issues, if left undisturbed, the analysis employed below is likely to create substantial doctrinal confusion in any number of equal protection cases proceeding through the Seventh Circuit, including perhaps those where gay and religious rights collide.

Posted by Marcia Oddi on September 9, 2014 10:54 AM
Posted to Ind. (7th Cir.) Decisions