Marriage Ban Stays Down In Wisconsin and Indiana: What Next, SCOTUS?

Olga Maltseva/AFP/Getty Images

Olga Maltseva/AFP/Getty Images

UPDATE: The U.S. Court of Appeals in Chicago joined many across the U.S. in striking down same-sex marriage bans in Wisconsin and Indiana as infringing upon the constitution rights of residents. The trial saw by now familiar comparisons of gay marriage bans to the historical ban of interracial marriage in the United States. While state attorney generals are not required to defend their state’s bans, Wisconsin Assistant Attorney General Timothy Samuelson did so with another familiar argument: tradition and historical precedence. Judge Richard Posner stated, according to The Associated Press, that the marriage bans were “savage discrimination.”

So far gay marriage has been made legal in nineteen states: California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and the District of Columbia. With the addition of Wisconsin and Indiana, that makes twenty-one. Like other cases, appeals for Wisconsin and Indiana are both possible and likely, meaning the Supreme Court will have the final say as it will in deciding on appeals across the U.S..

Last month the Fourth Circuit Court’s ruling on same-sex marriage was stayed, meaning couples eager to tie the knot across the Virginia once more had to wait out the legal doldrums in hopes of a gust of wind. The Virginia voter-led ban on gay marriage was overturned earlier. Following the ruling, the Fourth Circuit Court of Appeals refused to place a freeze on marriages — pending appeal — in contrast to what many other states have done. This led to a great deal of controversy. Gay marriage opponents claimed it would complicate matters should an appeal overturn the Fourth Circuit’s ruling and that it would place many in legal limbo. Victoria Cobb, president of the Family Foundation of Virginia, used the word “arrogance” in speaking with The Washington Post, stating that the judges were unnecessarily complicating matters when the final decision would not be theirs to make. All the hubbub was, of course, pointless, because ultimately the choice on whether or not to stay the decision pending an appeal was put to the Supreme Court in an application from Senior Counsel Byron Babione for the Alliance Defending Freedom. The Court’s decision to stay the ruling was hardly surprising; it had done so in previous cases, specifically Utah where 1,000 marriages that had taken place were not recognized due to the Supreme Court granting a stay. But the Supreme Court’s Order is both interesting and frustrating simultaneously because when it comes to same-sex marriage, states’ rights, and legal simplicity, SCOTUS is giving America a bad case of whiplash — and here’s why.