States Adopt Opposite Stances in Marriage Petitions to Supreme Court

Just days after the Seventh Circuit Court of Appeals overturned marriage bans in Wisconsin and Indiana, the states have petitioned the U.S. Supreme Court for review, a process known as granting writ of certiorari.

They join Utah, Oklahoma, and Virginia in jockeying for the court's attention when the justices return from their break September 29. On Wednesday, the court announced that it will consider those five states' petitions at its first conference. Now the question is over which case -- or cases -- the court will pick to review.

Each petition argues that it is the best case for the justices to choose to definitively rule on the issue of marriage equality. On occasion, the states' briefs even go so far as to criticize the worthiness of other cases for consideration.

Each team of attorneys is clearly making its best guess at the qualities Supreme Court justices might seek in a case, but there's disagreement among the teams. Qualities that one petition cites as an asset are dismissed by another as a vulnerability.

The Indiana petition boasts that the state has only a statutory ban on marriage, but no constitutional ban. Because of this, the case poses "no questions concerning whether it was sufficient for Plaintiffs to challenge only the constitutional definition but not the statutory definition," write attorneys representing Indiana's Republican attorney general, Greg Zoeller.

But the Wisconsin petition takes the opposite approach: "Unlike other states that have only state statutes and not constitutional amendments, i.e., [Indiana case] Baskin v. Bogan. ... Wisconsin presents both a constitutional amendment and a comprehensive statutory scheme," reads the petition for certiorari in Walker v. Wolf, filed on behalf of that state's attorney general, J.B. Van Hollen, who is also a Republican.

Similarly, Indiana attorneys brag that the state offers no civil unions, since "that might preclude the Court from arriving at a nationally relevant resolution." But the Wisconsin attorneys cite their state's civil unions as cause for the justices to take their case, writing, "Domestic partnership laws' effects, if any, on whether a state's traditional marriage laws pass constitutional muster, or were motivated by animus, can only be presented in this case."

But the Wisconsin and Indiana petitions find common ground in most other areas. Both point out that top state officials have participated in the defense of the marriage bans, unlike in Virginia. The Indiana petition also compares its case favorably to the Proposition 8 case, which the Supreme Court justices took up before ruling that it shouldn't have been before them in the first place.

"The Court has already tried to address the same-sex marriage issue once," the Indiana petition reads, "but was stymied by a background political drama that ultimately deprived the Court of a suitable party willing to defend traditional marriage."

The Wisconsin petition also differentiates its situation from the Prop. 8 case, pointing out that "neither standing nor jurisdictional issues will prevent the Court from from considering the question presented."

In addition, both states object to the test used by the Seventh Circuit to determine whether marriage bans violate the U.S. Constitution's Equal Protection clause. Wisconsin attorneys write that the Seventh Circuit cannot fashion "a policy-based four-part test that does not harmonize with this Court's Equal Protection jurisprudence."

The Indiana petition goes into greater depth in rebutting the conclusions of the Seventh Circuit decision, claiming that the lower court "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 goes so far as to claim that its marriage ban does not actually target gay and lesbian couples. "The statue itself makes no mention of sexual orientation," the attorneys write, "and as the case record in this case amply demonstrates, homosexuals often do marry members of the opposite sex in Indiana."

This is a reference to plaintiff Bonnie Everly, who wrote in a declaration, "In an attempt to live the kind of life that was expected of me, I was married a man and we had a son. We divorced in 2000, after 11 years of marriage."

It is surprising that Indiana would bring this up. It appears to be an attempt to prove that the state's current marriage law allows gays and lesbians to marry -- as long as they marry people of the opposite gender. But the example, of an unhappy lesbian who obtains a divorce, is hardly what most would consider a success.

Indiana also compares gay and lesbian couples to mere friends, writing, "Nor are homosexual couples 'singled out' by Indiana's marriage laws. Heterosexual girlfriends who merely wish to pool resources, or even raise a child together, cannot obtain the benefits of marriage. A caregiver for a mentally competent but physically invalid friend of the same sex, whose care would benefit from marriage, cannot marry her friend."

The Wisconsin petition doesn't delve into disagreements with the Seventh Circuit ruling. Instead, the petition merely concludes that "This Court should take this case to clarify what standard applies, whether it is heightened scrutiny or rational basis. The Court should then apply that standard to conclude that Wisconsin's traditional marriage laws do not violate the Equal Protection Clause."

The court may do just that. Or it may reject all five petitions. Or the justices could agree to hear a few cases and put the rest on hold, pending oral argument and a decision due no later than June of 2015.