Indiana University Bloomington

7th Circuit next stop for Indiana's gay marriage ban

  • Aug. 25, 2014

Editor's note: This story from The Bloomington Herald-Times is being published here as a courtesy for readers of IU in the News.

By Lindsey Erdody and Rachel Bunn

On Tuesday, Indiana’s ban on same-sex marriage will continue its whirlwind process through the court system, which may see it land at the feet of the nation’s highest court when it reconvenes in October.

A three-judge panel of the U.S. 7th Circuit Court of Appeals is scheduled to hear oral arguments in the Indiana and Wisconsin same-sex marriage cases Tuesday morning in Chicago, and many expect the court to follow in the footsteps of the U.S. 10th Circuit Court of Appeals and the 4th Circuit, which upheld lower court rulings overturning state bans on gay marriage.

"The 7th Circuit would seem like a real outlier if it came to a different conclusion," Indiana University associate law professor Steve Sanders said.

For Sanders’ money, the safe bet is in favor of gay couples.

"That would not be a foolish prediction, but it's obviously not a lock," he said.

As soon as the Indiana lawsuit reached the appellate court, an expedited schedule was set. Initially, oral arguments were scheduled for Aug. 12 -- less than two months after U.S. District Judge Richard Young's ruling.

"Which was crazy fast," said Jane Henegar, executive director of the American Civil Liberties Union of Indiana.

The Wisconsin case was combined with Indiana's in July, and the schedule was adjusted, but still is moving faster than usual for federal court.

"Normally, the court would have no oral arguments during the month of August," Henegar said.

Utah and Virginia cases are already waiting for the U.S. Supreme Court when justices return in the fall. There are three other cases, including Indiana's, making their way through the appellate courts. However, Sanders said it's unlikely the Indiana case will get there fast enough to be considered by the high court during its next term.

“One question will be: How many cases reach that point before Sept. 29?” said David Orentlicher, professor and co-director of the William S. and Christine S. Hall Center for Law and Health at the IU Robert McKinney School of Law in Indianapolis.

Should Indiana’s case move that quickly, the Supreme Court could choose to combine it with the other cases, or it could choose to take up only one of the cases.

“This is an issue. Everybody understands the arguments; which couple comes before the court is arbitrary. The concerns are the same across the board,” Orentlicher said.

But the Supreme Court could sit and wait for those cases to process through appellate courts.

“Sometimes, they do like to wait to see how an issue works through the lower courts,” Orentlicher said. “I think if they were seeing greater division on public sentiment, it would slow things down.”

Deborah Widiss, an IU associate law professor, agreed that it was unlikely that the court would wait to take up the issue of same-sex marriage.

“I think it’s pretty likely, given how many cases there are in the pipeline, the court will take up this issue,” Widiss said, especially if one of the lower courts decides to uphold a ban; though if that doesn’t happen, it wouldn’t keep the Supreme Court from doing anything.

One of the most compelling reasons for not waiting on these cases is a rights issue: What happens to those who were married in the short time frame same-sex marriage was allowed in these states?

“A lot of people’s lives are in limbo,” Widiss said.

The Supreme Court could refuse to consider one of the cases, and the appellate court ruling would stand in that circuit. For example, if the Utah case is turned away, same-sex marriage would be legal in Utah, Colorado, Kansas, New Mexico, Oklahoma and Wyoming.

The court notably refused to take on such things as issues related to life-sustaining measures and interracial marriage until years after the first cases started moving through the court system.

But with the public interest and the quickly changing public sentiment, such a delay is looking less likely, Orentlicher said.

“It’s been clear in the past couple of years it’s a question of when rather than whether,” he said. “A year ago, I would have said a year or two. Now, it’s accelerated so quickly, I think June at the outset.”

Henegar said one of the fascinating parts of these cases has been how closely they are followed. In most cases, she said, the public isn't aware when briefs are filed or when oral arguments are scheduled.

"The interest level on this is amazing," Henegar said.

Henegar wouldn't speculate on what the Supreme Court would do about the same-sex marriage cases, but pointed to Justice Anthony Kennedy's wording in the ruling striking down the federal Defense of Marriage Act.

"The language he used was as if there's a right to marry," Henegar said. "It all comes down to Justice Kennedy."

She also mentioned there's speculation about what Chief Justice John Roberts would want to do, given that a chief justice can be judged for how the court rules on major issues.

"He doesn't want to preside over the court that failed to seize the moment," Henegar said.

The judges presiding over Tuesday's hearing in Chicago will be unknown until that morning, and Sanders said that can have an impact on the opinion and how the language of it is crafted.

"I'll be very eager to see what the makeup of the panel is," Sanders said.

Orentlicher said it could be that the same panel of judges that reviewed other motions in the case: Judges Richard Posner, Ann Claire Williams and David F. Hamilton. If that is the case, it is likely at least two of the judges would rule in favor, Orentlicher said.

“Ruling in favor of same-sex marriage is going to be welcome by an overwhelming majority of the public,” Orentlicher said. “Like some have said: People are going to look back and wonder why this was ever a problem.” 

What to expect Tuesday

9 a.m.* (central time) doors to the courtroom open (seating is on a first-come, first-serve basis) ACLU of Indiana Executive Director Jane Henegar estimated the plaintiffs for each case will consume about half of the room

Oral arguments begin at 9:30 a.m. 

Each side of the Indiana case and each side of the Wisconsin case will have 20 minutes to present. If the court follows those time tables, the Indiana case will be heard from 9:30-10:10 a.m. Wisconsin representatives would argue until about 10:50 a.m. 

However, Henegar said it’s not unusual for judges to ask questions and allow additional time on important issues.

“The judges use this opportunity with oral arguments to think through,” Henegar said.

*All times are central time

Racing to the Supreme Court

4th Circuit (covers Virginia, West Virginia, North Carolina and South Carolina): Heard oral arguments > issued ruling allowing same-sex marriage > state of Virginia appealed to U.S. Supreme Court > Supreme Court issued stay > awaiting Supreme Court to accept or deny case

6th Circuit (covers Michigan, Tennessee, Ohio and Kentucky): Heard oral arguments Aug. 6 > awaiting court decision

7th Circuit (covers Indiana, Wisconsin and Illinois): Oral arguments scheduled for Aug. 26

9th Circuit (covers Arizona, Alaska, Hawaii, California, Idaho, Nevada, Oregon, Montana and Washington): Oral arguments scheduled for Sept. 8

10th Circuit (covers Utah, Colorado, Kansas, New Mexico, Oklahoma and Wyoming): Heard oral arguments > issued ruling allowing same-sex marriage > state of Utah appealed to Supreme Court > awaiting Supreme Court to accept or deny case