More appeals to SCOTUS filed in same-sex marriage cases

SCOTUSblog reports that two additional appeals on the issue of same-sex marriage bans have been filed in the U.S. Supreme Court, bringing the total number of pending requests for the high court to hear this issue to seven at the time of filing. Lawyers for the states of Wisconsin andIndiana separately petitioned the Court to hear the cases recently decided by the Court of Appeals for the 7th Circuit, which struck down same-sex marriage bans in both states on September 4th. Other requests are pending from cases out of Oklahoma and Utah (10th Circuit) as well as three cases out of Virginia (4th Circuit).  All of the cases deal with two constitutional issues: the constitutionality of states' bans on same sex-marriage and states' refusal to recognize same-sex marriages performed in other states.

The 7th Circuit case, with an opinion at times witty, scathing and sarcastic, penned by Reagan-appointee Judge Richard Posner, found same-sex marriage bans in Wisconsin and Indiana unlawful discrimination in violation of the Equal Protection Clause of the 14th Amendment, holding, "the discrimination against same-sex couples is irrational, and therefore unconstitutional." As SCOTUSblog discusses, in finding that the laws amounted to discrimination, Posner avoided dealing with a thornier and more complex analysis of marriage as a fundamental right under the Due Process clause. Posner wrote, "Our pair of cases is rich in detail but ultimately straight-forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously."

The appeals are not mandatory, meaning that the U.S. Supreme Court has discretion as to whether to hear the cases, but SCOTUSblog reportsthat parties on all sides are urging the Court to act. There is not currently a split among circuits courts with respect to these issues, which would almost certainly prompt faster action by the high court. This could change, however, as there are cases awaiting decision in both the 6th and 9th Circuits.