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Gay marriage backers want high court to step in

September 10, 2014

The U.S. Supreme Court has formally added gay marriage cases to the justices' agenda for their closed-door conference on Sept. 29.

The action Wednesday does not mean that the court will decide that day to hear state appeals of lower court rulings that struck down bans on same-sex marriage. But the late September conference will be the first time the justices have the issue before them. The meeting will be the justices' first since late June.

Appeals have been filed from Indiana, Oklahoma, Utah, Virginia and Wisconsin. The justices could put off deciding whether to take up gay marriage until January and still be able to issue a decision by late June.

Opponents and supporters of same-sex marriages alike are trying to persuade the Supreme Court to take up Indiana's case to decide once and for all whether gay marriage should be legal in all 50 states.

In documents filed late Tuesday, lawyers for Indiana gay couples who have won their case so far in federal courts asked the high court to weigh in on the issue, just hours after the state attorney general's office did the same thing. Both the state and gay marriage supporters believe the Constitution is on their side.

National gay rights group Lambda Legal, the American Civil Liberties Union of Indiana and others involved in the case said in a brief filed jointly that a federal appeals court got it right when it struck down Indiana's gay marriage ban. The move came just hours after Indiana Attorney General Greg Zoeller asked the Supreme Court to reverse that ruling.

Zoeller took that issue even further Wednesday, asking the 7th Circuit U.S. Court of Appeals to allow the status quo to remain in place until the Supreme Court can decide the issue, and saying the Indiana case presents the best opportunity to resolve the debate.

Both sides say the Indiana case goes to the heart of the issue — whether banning gay marriage is unlawful discrimination — while steering clear of legal distractions. Both sides quote liberally from the scathing decision last week written by 7th Circuit Judge Richard Posner. But the similarities end there.

"At stake is whether states may, within constitutional parameters, relegate same-sex couples' relationships to a 'second-tier' status," barring them from the legal, financial and social benefits of marriage, said the joint brief filed by gay marriage supporters.

Like Posner, supporters argue that failure to recognize gay marriage, even though same-sex couples are allowed to adopt children, sends a mixed message.

"Being able to marry not only would provide these families with financial and health care security but also would demonstrate to their children the legitimacy and strength of their family union," the brief said. It argued that the 7th Circuit recognized that "sexual orientation is an immutable characteristic that is not relevant to a person's ability to participate in society."

Like the state brief, the new petition said the Indiana case offers the Supreme Court the "best vehicle" for resolving the legal and social issues surrounding the debate over same-sex marriage "expeditiously."

"We're prepared to defend this victory with everything we've got," Camilla Taylor, marriage project director for Lambda Legal, said in a statement.

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