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Indiana solicitor general: ‘Good day’ for traditional marriage at SCOTUS

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Indiana and other states against same-sex marriage appeared to make a strong impression on the U.S. Supreme Court justices Tuesday, Indiana Solicitor General Thomas Fisher said after watching arguments in Washington.

“On balance, my sense is that a proposition that adheres to traditional marriage seemed to have a pretty good day,” said Fisher, who with state attorneys from Virginia wrote an amicus brief joined by 17 states in Hollingsworth v. Perry, 12-144,  which justices heard Tuesday. “I don’t know that our side will win, but it seems unlikely we will lose based on the arguments.”

In Hollingsworth, California’s Proposition 8 constitutional amendment banning same-sex marriage was struck down by the 9th Circuit Court of Appeals. The states argue that they have an interest in protecting their ability to define and regulate marriage, and preserve the integrity of their constitutions and democratic processes.

Fisher also authored an amicus brief joined by 16 other states in U.S. v. Windsor, 12-307, a challenge to the federal Defense of Marriage Act which will be argued before the court Wednesday. Justices are asked in that case to decide whether Section 3 of the Act, 1 U.S.C. Section 7, violates the equal protection component of the Due Process Clause of the Fifth Amendment.

In the Hollingsworth arguments, justices appeared to question whether proponents of Proposition 8 had standing or authority to represent their claims in federal court, Fisher said. “It’s not clear to me there are five votes on either side of that issue,” he said.

Fisher said he agreed with the analysis of SCOTUS blog writer and veteran court expert Lyle Denniston, who was seated next to him during arguments. Denniston wrote that in a rare public display, Justice Anthony M. Kennedy worked through many possible options for the court and “openly wondered why the court had agreed even to hear the case.”

Fisher believes the court is unlikely to dismiss the case, though. He said it’s likely the court will decide on standing and render a decision on the merits.

Indiana Attorney General Greg Zoeller said when the briefs were filed that they reflected the state’s leadership “on advocating generally for the legal authority of states to determine their own marriage license definitions and specifically for the traditional marriage definition of one man and one woman.

“Our briefs filed before the U.S. Supreme Court defend the authority of other states to define marriage – including those nine states that legally recognize same-sex couples – and also defend the traditional marriage definition that underpins traditional family structure and is of central legal importance to our state.”

The Indiana Legislature this year suspended consideration of a constitutional amendment banning same-sex marriage pending resolution of the cases before the Supreme Court.

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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

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