Indiana, Wisconsin ask Supreme Court to make final decision on same-sex marriage confrontation

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INDIANAPOLIS — Attorneys general for Wisconsin and Indiana each tried to convince the U.S. Supreme Court on Tuesday that his state's gay marriage case should be the one to decide the contentious issue for the country.

Indiana Attorney General Greg Zoeller and his Wisconsin counterpart, J.B. Van Hollen, separately asked the nation's highest court to reverse a 7th Circuit U.S. Court of Appeals ruling last week that found both states' gay marriage bans unconstitutional.

Oklahoma, Virginia and Utah already have asked the court to validate their gay marriage bans. It's unclear when the Supreme Court might decide which of the five cases, if any, to take up, but the states are hoping the justices will consider their requests during a Sept. 29 conference.

Zoeller and Van Hollen each argued that his respective state's case presents the best set of facts on which to base a sweeping decision that could determine the legality of same-sex marriage in all 50 states. For example, they argued, the cases would allow the justices to answer legal questions about defining marriage as unions between men and women and whether states must recognize same-sex couples married elsewhere.

Wisconsin maintains it's the only state that bestows limited rights on gay couples through a domestic partner registry, giving the Supreme Court a chance weigh in on how such a registry might affect traditional marriage laws. Indiana, on the other hand, says its lack of domestic partner recognition clears the way for a national resolution.

Van Hollen's request urges the court to take up Wisconsin's case and "settle this ongoing, emotionally charged debate." Zoeller's request touts the value of traditional marriage and says it's "utterly implausible to understand traditional marriage, at bottom, as an institution created for the purpose of discriminating against homosexuals."

U.S. District Judge Barbara Crabb struck down Wisconsin's ban on June 6. More than 500 gay couples got married before Crabb put her ruling on hold a week later pending Van Hollen's appeal. In Indiana, U.S. District Judge Richard Young threw out the state's prohibition on June 25. Hundreds of couples in that state got married before the 7th Circuit stayed his ruling two days later. It's unclear exactly how many couples tied the knot.

Van Hollen and Zoeller, both Republicans, appealed to the 7th Circuit. That court consolidated the cases and ruled last week that both states' bans were unconstitutional. The stays on gay marriage in both states are still in effect, however, and the status of the couples who married in both states remains murky.

"We knew that this business would end up going all the way to the Supreme Court, either our case or one of the other states'," said Melody Betterman-Layne, 37, who shares a daughter with her partner, Tara Betterman-Layne. "We feel incredibly said."

Paul Castillo, the attorney for national gay rights organization Lambda Legal who helped argue the Indiana case before the appellate court, said the key issue facing both states is whether second-class status is good enough for gay couples and their children.

"It's important for children to know their parents are actually married the same as their classmates' parents," Castillo said, echoing a stinging ruling last week written by 7th Circuit Judge Richard Posner.

The American Civil Liberties Union, which brought the Wisconsin challenge on behalf of eight gay couples, urged the justices to do something as well.

"With these filings, we hope it's only a matter of time before all Americans in all 50 states have the freedom to marry," James Esseks, director of the ACLU's Lesbian Gay Bisexual and Transgender Project, said in a statement.

Both the ACLU and Lamda Legal were expected to file responses to Zoeller and Van Hollen's briefs on Wednesday.


Richmond reported from Madison, Wisconsin.

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