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Add 2 More: Wis., Ind. Seek SCOTUS Review of Same-Sex Marriage

By Mark Wilson, Esq. on September 10, 2014 | Last updated on March 21, 2019

Predictably, both Indiana and Wisconsin are appealing to the U.S. Supreme Court following their blistering loss last week at the Seventh Circuit.

At both oral arguments and in the written opinion, Judge Richard Posner did almost as much damage to them as Tom Brady did to my fantasy football team over the weekend.

Here's a look at what the two states are arguing in their petitions:

A Tale of 2 Petitions

Wisconsin's petition for certiorari is on the fast track: They've waived the right to a reply brief to the petition so that the Supreme Court can consider the petition at its September 29 conference. In other words, let's get this ruled on this term!

Wisconsin presents a boatload of reasons why it should be the case the court takes relating to same-sex marriage: (1) There are both wholly in-state claimants, as well as out-of-state claimants (people married in another state trying to get recognition in Wisconsin); (2) every state official has vigorously defended the law, unlike the Attorney General of California in Hollingsworth; (3) there's both a state constitutional amendment and a state statute at issue; (4) Wisconsin already provides rights to same-sex couples in the form of domestic partnerships; and (5) there are no standing issues. Basically, it's "Hey, Supreme Court, you want a thick, juicy set of meaty issues to resolve all at once? Try Wisconsin!"

Strangely, Indiana claims that it's just as unique as Wisconsin. Of course, it's got all the same things going for it: no Attorney General problems, no standing issues, and no similar incidents of marriage like domestic partnerships (which Wisconsin thinks is a benefit!).

Which One to Take?

If I had to decide based on typography -- and in a situation like this, where civil rights hang in the balance, of course you would -- then I'd go with Indiana. The Hoosier State's petition didn't suffer from problems like crazy spacing issues due to using all caps for headings in the thin space for text that Supreme Court briefs squeeze between two giant margins. If I had to go with content, though, Wisconsin's petition is more comprehensive and doesn't spend a lot of time rehashing what happened in lower courts.

Of course, Wisconsin and Indiana are just two more in an ever-increasing pile of briefs from states seeking review of same-sex marriage laws. In fact, upon returning to Washington from their summer breaks, the other justices couldn't find Justice Ginsburg. It turned out she was just trapped behind the stack of state petitions.

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