Amid the rush for U.S. Supreme Court review of gay-marriage bans that have been struck down from coast to coast, Indiana and Wisconsin are set to ask a federal appeals court to declare their laws barring such unions constitutional.
A three-judge panel in Chicago will hear arguments Tuesday, becoming the fourth appeals court to take up the issue following a wave of successful challenges to same-sex marriage bans beginning last year.
Same-sex unions are legal in 19 states and the District of Columbia. Court decisions overturning bans in 11 other states have been put on hold for appeals.
Since June 6, when U.S. District Judge Barbara B. Crabb in Madison declared Wisconsin’s ban unconstitutional, prohibitions in Indiana, Kentucky, Colorado and Florida have been ruled invalid, and rulings striking down such laws in Utah, Oklahoma and Virginia have been upheld on appeal.
Lawyers defending the Virginia, Oklahoma and Utah measures already have asked the high court for review. A federal appeals court in Cincinnati on Aug. 6 heard arguments over the Kentucky case and five other rulings in favor of recognition.
The run of favorable decisions may make success for gay-rights advocates more probable, but not guaranteed, said Andrew Koppelman, a professor at Northwestern University’s law school in Chicago.
“The more victories the proponents of same-sex marriage pile up in the lower courts, the better off they’ll be in the Supreme Court,” said Koppelman. “It’ll be a big step for the Supreme Court to legalize same-sex marriage throughout the United States. The more lower courts agree with them, the more confident they will be about doing that.”
The Supreme Court’s 2013 decision striking down that part of the U.S. Defense of Marriage Act limiting federal recognition to male-female couples triggered much of the litigation that followed. The Wisconsin case and three Indiana cases before the appeals court in Chicago were filed in its wake.
Wisconsin Attorney General J.B. Van Hollen contends his state has no affirmative obligation under the constitution or Supreme Court precedent to recognize gay marriages or the tax, property and other legal benefits that go with it.
Rather, prior high court rulings including the 1967 invalidation of Virginia’s ban on interracial marriage “should be read as recognizing the constitutional restrictions on the government’s ability to infringe the freedom of individuals to decide for themselves how to arrange their personal affairs,” according to a court filing by Wisconsin.
The eight couples challenging that state’s ban called Van Hollen’s reading of the law “erroneous,” saying in their Aug. 4 filing that Supreme Court cases establish marriage “as a fundamental right, not a matter of government largess.”
In the Indiana case, same-sex couples say that because of the ban they are treated differently than heterosexual ones under at least 614 state laws. They argue their case is about the fundamental right to marry, not about the right to marry somebody of the same sex.
“The scope of a fundamental right is not defined by the identity of the people who seek to exercise it or who have been excluded from doing so in the past,” they said in a July 29 appellate filing. “Instead, the scope of a fundamental right is defined by the attributes of the right itself.”
U.S. District Judge Richard Young in Indianapolis agreed with those couples in a June 25 ruling, finding the state’s prohibition unconstitutional, one of three Indiana decisions grouped for argument before the Chicago panel.
Indiana Attorney General Greg Zoeller disagreed.
“The rights plaintiffs claim have no grounding in constitutional text, history or structure,” according to his state’s filing.
An order compelling Indiana to recognize same-sex marriages could lead to it later being forced to recognize all relationships, “whether they involve sex or not, whether they involve two people or more,” Indiana argued.