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En Banc Opposed in Gay Marriage Appeals; States Playing Odds?

By William Peacock, Esq. on July 24, 2014 | Last updated on March 21, 2019

Perhaps these requests have something to do with the Seventh Circuit's cancellation of previously scheduled oral arguments in two gay marriage appeals out of Wisconsin and Indiana. Earlier this month, the appeals were combined and fast-tracked for oral arguments on August 13.

Late last week, however, the Seventh Circuit issued this release (H/T to Equality on Trial):

The court, on its own motion, ORDERS that the oral argument in this appeal, scheduled for Wednesday, August 13, 2014, is VACATED. A new oral argument date will be set by separate court order.

Okay, but why? It might have something to do with requests from the states of Indiana and Wisconsin to proceed directly to an en banc hearing of the case, rather than the typical three-judge panel.

Plaintiffs Push Back

The states are asking for en banc review due to the magnitude and importance of the issue, but the plaintiffs are pushing back against the request, reports The Associated Press.

The American Civil Liberties Union, which represents couples in Indiana and in Wisconsin, filed requests with the court to proceed as scheduled, with a three-judge panel, arguing that an en banc order would delay the appeal and burden the court without any benefit -- four other appeals courts have heard arguments with three judge panels, after all.

What's the Real Story?

Though a spokesman for the Indiana Attorney General's Office assured the public that the request was solely for the "benefit [of] the judicial process," there has to be more to it, right? There is. A three-judge panel, as you've probably already guessed, is chosen at random. En banc is the entire active court.

Care to guess what the makeup of the Seventh Circuit is? Seven Republican appointees (four by Reagan, one by G.H.W. Bush, and two by G.W. Bush) and three Democratic appointees (two by Clinton, one by Obama).

It's simple math: a panel is playing with favorable odds for the state, but with a slim chance of drawing two Democratic appointees. En banc is playing with a stacked deck.*

*Obvious disclaimer: the appointing president's party affiliation is no guarantee of a judge's leanings -- some judges are compromise candidates, and others simply change their views over time.

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