This Week in Marriage Equality

Big doings this week in the Seventh Circuit. Plus, NOM's objections to marriage equality in Oregon get slapped down AGAIN, this time by the Ninth Circuit. Here's GLAAD's version of the map.

As you can see, marriage equality remains legal in 19 states and the District of Columbia. In 13 states the ban has been overturned, and the states involved have appealed that, and the ban is being challenged in court in every other state.

On Tuesday, the Seventh Circuit heard the marriage equality cases from Indiana and Wisconsin. The marriage equality team here noted, as the hearing was set to begin, that the three-judge panel adjudicating them could not have been more favorable to overturning the ban. The diary could not have been more correct! Mark Joseph Stern at slate.com has sound clips of Judge Richard Posner's comments to Indiana Solicitor General Thomas Fisher and to Wisconsin Assistant Attorney General Timothy Samuelson concerning their attempts to defend their states' marriage bans. The best from Indana:

After asking Fisher why Indiana shouldn’t just “criminalize fornication” in order to deal with its “unintended child problem,” Posner returned to the child question, demanding of Fisher, “Why do you prefer heterosexual adoption to homosexual adoption?” When Fisher struggles to respond, Posner sighs, “Come on now. You’re going in circles.” He then asks why Indiana wants to punish children because “their parents happen to be homosexual.”

The even better one from Wisconsin:

Samuelson attempts to argue that Wisconsin’s tradition of allowing only opposite-sex marriage is a rational basis for barring same-sex couples from the institution. Posner sinks in his claws, drawing painful, direct parallels between the current case and Loving v. Virginia. The racists who opposed interracial marriage, Posner notes, “make the same arguments you would make.” What’s the difference? When Samuelson releases a bizarre string of nonsense about common law, Posner audibly mutters, “Oh no.”

Tradition! I can't resist. I'm just sorry I don't have Zero Mostel in live performance.

As USA Today noted on Wednesday

Attorneys tasked with defending Indiana and Wisconsin's bans on same-sex marriage faced an onslaught of tough questioning Tuesday from a federal court panel that repeatedly asked whether the bans were doing unnecessary harm to adopted children.

Don't be surprised if the Seventh Circuit releases its decision before the Sixth Circuit, which heard cases from Ohio and Kentucky on August 6, does.

Meanwhile, yet another fail for the National Organization for Marriage, whose attempt to overturn Oregon's marriage equality law failed for the fifth time. Again, the issue was standing; again, the court said it was hard-pressed to see how any of the parties in NOM's suit had standing to object to marriage equality. I can't imagine that, after the Supreme Court's decision on Prop 8, that NOM will find enough judges to grant cert, but given the current makeup of the Court, I could be wrong.

And, speaking of the Court, SCOTUSBlog reported on Thursday that

The same-sex marriage case that is most familiar to the Supreme Court — from Utah — is close to being ready for the Justices to consider it alone or among other cases for review.  Lawyers for three couples — two who wish to marry, and one seeking official recognition of their existing marriage — on Thursday filed a brief supporting review of the already-filed appeal by Utah state officials.

snip

While the Court now has four petitions raising constitutional issues about such state bans, and soon will have a fifth, some of the petitions are moving along more rapidly than others.  The Utah case, the first to reach the Court, may well be ready for the Justices to examine at their first Conference on September 29, just before the opening of the next Term.

Finally, Lambda Legal has a really good summary ofall the outstanding marriage equality cases:

There are currently:

92 pending marriage equality lawsuits in 33 states (AL, AK, AZ, AR, CO, FL, GA, HI, ID, IN, KS, KY, LA, MI, MS, MO, NE, NV, NC, OH, OK, OR, PA, SC, TN, TX, UT, VA, WV, WI, WY) and Puerto Rico.

60 of these are in federal court; 19 of those are on appeal. Petitions for a writ of certiorari have been filed with the United States Supreme Court in 3 of these (Utah, Virginia, Oklahoma). 32 are in state courts; 15 of these are on appeal; and 25 raise federal claims.

There are pending marriage equality lawsuits in all states that do not currently allow same-sex couples to marry, and in all Circuits of the U.S. Courts of Appeals in which not all states allow same-sex couples to marry.

By the end of the next SCOTUS session, I'd guess. It's a VERY complete list, with each of the 92 lawsuits named and described briefly in the appendix.