In the race to get a same-sex marriage case before the Supreme Court of the United States this term, Indiana Attorney General Greg Zoeller’s office is arguing the state’s three lawsuits provide the best vehicle for resolving the same-sex marriage issue.
The Indiana attorney general filed a petition for writ of certiorari with the Supreme Court Sept. 9, five days after the 7th Circuit Court of Appeals found Indiana’s ban on same-sex marriage was unconstitutional. Today was the last day Indiana could have filed its petition to ensure it could be considered along with the same-sex marriage petitions from Utah, Oklahoma and Virginia during the Supreme Court’s first conference on Sept. 29.
Drafted by Indiana Solicitor General Thomas M. Fisher, the petition characterized the central issues as whether states can define marriage themselves and if states can decide on their own whether to recognize same-sex marriages. It also urged the Supreme Court to resolve both issues in order to give states a clear understanding of their authority to define marriage.
The plaintiffs in the Indiana challenge filed their response brief to the state’s petition today as well. Same-sex couples in Baskin v. Bogan, Fujii v. Commissioner of the Indiana State Department of Revenue and Lee v. Pence agreed with the attorney general that Indiana’s case would be an “excellent vehicle” for resolving the constitutional questions surrounding marriage equality.
Indiana acknowledged the Supreme Court has an opportunity to consider an assortment of same-sex marriage cases, but all those other challenges have shortcomings. The state argued only Indiana’s case is clearly focused on the core legal issues and the petitioners include a county clerk and state officials who issue marriage licenses and confer concrete benefits to married couples.
“And the State’s Attorney General, rather than attacking his own State’s traditional marriage law, provides a robust defense of the law,” the state’s petition continued. “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.”
Should the nine Justices decide to consider multiple same-sex marriage cases, Indiana argued its case should be included because the 7th Circuit ruled only on equal protection grounds and did so using an unorthodox analysis. In the petition, Indiana denounced the appellate court’s decision as having “strayed far” from the Supreme Court’s 14th Amendment doctrine.
“The Seventh Circuit, in an opinion by Judge Posner, expressly created its own four-part equal protection framework that presupposed that 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.”
Indiana continued to aggressively attack the 7th Circuit’s opinion as misinterpreting the state’s responsible procreation argument. It also highlighted Posner’s 1997 scholarly article, “Should There Be Homosexual Marriage? And If So, Who Should Decide,” where Posner concluded gays and lesbians are not discriminated against because they cannot marry their same-sex partners.
“Having thus gutted marriage of any substantive meaning,” Indiana’s petition states, “the decision (from the 7th Circuit) has left it to drift from one cultural transformation to the next, constantly to be repurposed by shifting social forces it was meant in some modest way to shape.”
The same-sex couples maintained the 7th Circuit reached the right conclusion but asserted the Supreme Court should grant review because the issue is of “fundamental importance” to the country and relief for the gays and lesbians will come only if the court decides these constitutional issues.