The state of Indiana is asking the United States Supreme Court to consider the case involving its law banning same-sex marriage. Attorney General Greg Zoeller says the state is asking the nation's highest court to reverse last week's 7th Circuit Court ruling invalidating the law.

September 9, 2014

News Release

Indianapolis, Ind. — Today the State of Indiana filed in the United States Supreme Court its appeal of a 7th Circuit ruling last week that invalidated Indiana's marriage statute. In filing its appeal – called a petition for writ of certiorari – the State asks the nation's highest court to reverse the lower court and reinstate Indiana's longstanding legal definition of marriage.

“Less than six months after my office first entered our appearance in trial court to defend our state client from this lawsuit, our case now is knocking on the door of the United States Supreme Court, timing that is lightning speed by the standards of the federal court system. Our state, nation and all persons involved need a final, unambiguous and conclusive answer from the Supreme Court on the legal authority of states to license marriages, and we ask the Court to take up this question through either our case or another case at its earliest opportunity and end the uncertainty,” Indiana Attorney General Greg Zoeller said.

Under its duty to defend the state laws the people’s elected representatives in the Legislature pass from lawsuits plaintiffs’ lawyers file, the Attorney General’s Office has served as state’s lawyer in the consolidated lawsuit Baskin et al. v. Bogan et al. that plaintiffs filed in March in U.S. District Court for the Southern District of Indiana. The State contends Indiana’s marriage-definition statute is constitutional and the Legislature was within its authority to adopt it and not recognize same-sex marriages granted in other states. The June 25 ruling in the legal challenge by U.S. District Chief Judge Richard L. Young invalidating Indiana’s marriage statute was stayed June 27. The State appealed Chief Judge Young’s ruling to the U.S. 7th Circuit Court of Appeals in Chicago, which on Sept. 4 affirmed the trial court and also ruled against Wisconsin’s marriage law in Wolf et al. v. Walker et al. The stay in the Indiana case remains in effect.

In appealing the 7th Circuit opinion, Indiana’s cert petition notes three other states have appealed federal circuit rulings in legal challenges to their marriage laws, cases that now are poised for Supreme Court consideration:

• The Kitchen v. Herbert case, where Utah appeals the U.S. 10th Circuit Court of Appeals ruling striking down that state’s marriage law.

• The Bishop v. Smith case, where Oklahoma appeals the 10th Circuit’s ruling against that state’s statute.

• The Bostic v. Schaefer case, where Virginia appeals the U.S. 4th Circuit Court of Appeals decision striking down its law.

In each of the legal challenges, federal circuit appeals courts used different legal basis and reasoning to strike down the state’s marriage laws. Indiana contends that due to the circuit split, the Supreme Court should take up the legal question this term and resolve it conclusively. The Attorney General’s Office notes that Indiana’s case is free of some legally complicating factors found in other cases and affords the Supreme Court a good opportunity to decide the matter – either as a stand-alone case or in conjunction with other cases. Drafted by Solicitor General Thomas M. Fisher, Indiana’s cert petition notes on page 26:

“As should be clear, two core same-sex marriage issues have emerged from coordinated national litigation over the past year: Whether States can define marriage as a man-woman institution, and even if so, whether States must nonetheless recognize same-sex marriages from other States. It is important for the Court to resolve both issues simultaneously so that States will have a clear understanding of the extent of their authority to define marriage within their borders. These combined cases present both issues…”

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. If the Supreme Court decides to “grant cert” and accept a case, then it will set deadlines for the sides to file briefs and will schedule oral argument for later date.

The current circumstance has its roots in the U.S. Supreme Court’s dual decisions of June 2013. In the U.S. v. Windsor case, the Court struck down the federal Defense of Marriage Act. But in the Hollingsworth v. Perry case challenging the State of California’s law, the Court declined to rule conclusively on state marriage definitions. The reason: The California statute had not been defended by the state’s lawyer, California’s attorney general, and the private attorneys who attempted to defend the law lacked legal standing. Zoeller noted the failure of the proper lawyer to defend California’s law caused the Supreme Court to punt the issue back to the states and opened the floodgates to challenges filed in multiple states, so a conclusive Supreme Court ruling is needed to bring finality to the legal question.

In defending Indiana’s marriage statute and the state defendants as its duty from the plaintiffs’ lawyers’ lawsuit, the Attorney General’s Office has provided a defense through its existing office budget the Legislature approved in advance. The case is assigned to an on-staff salaried attorney who does not charge billable hours. Unlike other states, Indiana has not hired outside counsel to defend its statute.

Separately, the Attorney General’s Office will ask the 7th Circuit to extend for the time being the stay it issued June 27 so the status quo will remain in place until the U.S. Supreme Court can decide the appeal.

Source: Office of Indiana Attorney General Greg Zoeller

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