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  • WisBar News
    September 11, 2014

    Same-Sex Marriage in Wisconsin: U.S. Supreme Court May Decide

    Sept. 11, 2014 – The U.S. Supreme Court may hear a case that challenges Wisconsin’s same-sex marriage ban, as well as bans in four other states. The petitions will get a first look at the end of this month when the Court convenes for a private conference.

    Clayton Kawski, an assistant attorney general for the Wisconsin Department of Justice, submitted a petition for writ of certiorari on Tuesday in Scott Walker v. Virginia Wolf et al. Also on Tuesday, the challengers filed a brief in support of certiorari.

    Yesterday, the nation’s high court distributed the petition for conference on Sept. 29, 2014, reports SCOTUS Blog, which means the Court may discuss whether to hear the case in its next term. The case has been on a fast-track since early summer.

    The primary issue is whether gay marriage bans violate the Fourteenth Amendment’s Equal Protection Clause, which says states cannot deny any person equal protection of the laws. The challengers say gay marriage bans discriminate against gay couples.

    Just last week, a three-judge panel for the U.S. Court of Appeals for the Seventh Circuit struck down the same-sex marriage bans in Indiana and Wisconsin, setting up a direct appeal to the U.S. Supreme Court. The High Court will also consider seven other petitions challenging same-sex marriage bans in Indiana, Utah, Oklahoma, and Virginia.

    “There is, of course, no certainty that they will act on any or all of them at that point, but the option is there,” wrote Lyle Dennison for SCOTUS blog, which covers the U.S. Supreme Court. “With all sides agreeing that the time to rule is now, it would be a surprise if the Court opted to bypass the issue altogether in its new Term.”

    In its petition, the state argues that the Seventh Circuit Court of Appeals, in an opinion by Judge Richard Posner, incorrectly decided the case.

    “[T]he Seventh Circuit’s decision is rife with judicial policymaking and the creation of new judge-made law, instead of the even, measured, and modest application of this court’s existing precedent,” the petition for writ of certiorari states.

    The respondents, who have successfully challenged Wisconsin’s same sex-marriage ban in federal court to this point, say the Seventh Circuit should be affirmed.

    “The Seventh Circuit correctly concluded that Wisconsin’s marriage ban failed both heightened scrutiny and rational basis review,” the brief in support of certiorari states.

    “The Seventh Circuit did not find, and Wisconsin failed to identify, any reason why excluding same-sex couples from marriage furthered the State’s interest in enhancing child welfare through regulating procreation.”

    Related Articles

    Unconstitutional: Wisconsin, Indiana Offer No Good Reasons for Gay Marriage Bans, Seventh Circuit SaysWisBar News, Sept. 5, 2014 (opinion summary: U.S. Court of Appeals for the Seventh Circuit, three-judge panel)

    Same-Sex Marriage at the Seventh Circuit: A Legal Analysis of the Merits – WisBar InsideTrack, Aug. 20, 2014 (case preview by attorney Christopher Krimmer)

    Same-Sex Marriage Decision: Federalism Does Not Trump Constitutional Rights – WisBar News, June 9, 2014 (opinion summary: U.S. District Court for the Western District of Wisconsin, Judge Barbara Crabb)

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