Via the Indiana Law Blog, Indiana’s Attorney General Greg Zoeller has filed a petition for certiorari with the United States Supreme Court asking for review of the 7th Circuit’s blistering opinion holding that Indiana’s “marriage protection” law violated the Equal Protection Clause of the 14th Amendment to the United States Constitution.
The respondent same sex couples seem to have filed their response almost at once. They agree that the U.S. Supreme Court should consider the case. They state the question as:
Whether a statute violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the U.S. Constitution by prohibiting same-sex couples from marrying and by refusing to recognize their lawful, out-of-state marriages.
versus the State’s characterization of the issue presented:
1. Whether the Due Process and Equal Protection Clauses of the Fourteenth Amendment permit States to define marriage as a legal union between one man and one woman.
2. Whether the Due Process and Equal Protection Clauses permit States to treat as void same-sex marriages from other jurisdictions.
The State’s characterization of the issue is slightly disingenuous. Nobody is saying that the State can’t define marriage as a legal union between one man and one woman; only that the definition violates the Equal Protection Clause if it also excludes same sex couples from inclusion in the definition.
As to the timing, I suspect there was collaboration between the Plaintiffs and the State to get their filings into the Supreme Court by the deadline for the Supreme Court to consider the case during this session. The Attorney General’s press release notes that:
Today was the deadline for Indiana to file its cert petition in order to be considered along with the Utah, Oklahoma and Virginia petitions during the Supreme Court’s first conference Sept. 29 where justices will to decide which cases to hear early in their next term, which begins in October and lasts through June 2015.
In fact, that was probably one reason for the 7th Circuit panel’s rapid turn around time between hearing oral argument and issuing its opinion.
Just browsing, I see that the State cites a 1997 law review article from Judge Posner entitled, “Should there be homosexual marriage and, if so, who should decide?” 95 Mich. L. Rev. 1578 (1997). However, one of the citations to this piece by the State, at least, is misleading. They quote a bit by Posner where he says that there is formal equality inasmuch as gays are allowed to marry opposite sex partners just like heterosexual couples but somehow manage to miss the next sentence where he says that the practical effect is to “exclude homosexuals from a fundamental social institution.”
Posner’s 1997 article is a review of a piece by Prof. William Eskridge entitled “The Case for Same Sex Marriage.” Posner is generally respectful of Prof. Eskridge’s work but takes issue with Eskridge’s historical accounts of gay couples. Posner offers speculation that the rise of intolerance against gays in the West corresponds with the rise of “companionate marriage” — marriage where the couples are supposed to be companions instead of the woman being chiefly a breeder for the man. (My unstudied notion was that marriage was more of an evolution from a property-centered arrangement to romantic relationships, emulating such relationships as they became fashionable in the royal courts.) In any event, Posner suggested that companionate relationships had the effect of outing the gay people who didn’t share such companionship and thereby provoking increased hostility against them.
In the law review article, Posner observes that public opinion in favor of same sex marriages had shifted from unthinkable to slight. (The last 17 years has, of course, seen a quantum leap in that public support.) And public support seems to be at the crux of his disagreement with Eskridge about whether the Supreme Court should recognize a constitutional right being violated if same sex marriage is illegal. He says that Eskridge’s arguments were fine legal arguments but, based on the lack of public support, such arguments would be “usurpative” if adopted by the Supreme Court. It’s an interesting question whether public support ever had a legally had a role to play (as a practical matter, it often does — see for example, the Supreme Court’s internment of Japanese during World War II). But, if it does, public support is now on the side of same sex marriage along with those technical legal arguments. And, in 1997, Posner said that before the Supreme Court found a right to same sex marriage in the Constitution, public opinion would have to shift, a state court or state legislature should adopt same sex marriage as a policy, and the rest of the nation should learn from exercise.
This post has been a little unstructured, but that’s all I have time for at the moment, so here you go.