INDIANAPOLIS — Attorneys on either side of a lawsuit over Indiana’s overthrown same-sex marriage ban are wrangling over how many federal judges should hear the state’s appeal, a technical issue that could make a big difference.
Those representing gay couples who want the ban overturned permanently – the American Civil Liberties Union of Indiana, Lambda Legal and a private law firm – have argued in a brief filed Monday that a three-judge panel of the 7th U.S. Circuit Court of Appeals is enough.
They say three-judge panels in other districts have heard similar cases and at least one has rejected a similar motion for a full-court hearing.
Indiana Attorney General Greg Zoeller requested June 11 that the full, 10-member court hear the case, which lawyers call en banc review. Wisconsin made a similar move last week after the same federal appeals court had consolidated Indiana and Wisconsin’s cases.
“En banc review would serve to provide the insights and judgment of 10 well-respected judges, rather than just three, which would benefit the judicial review process no matter the outcome,” Indiana attorney general’s office spokesman Bryan Corbin said in a statement Tuesday.
But according to a legal expert, a full-court review amounts to playing the odds.
“Your panel of three may or may not be representative of the whole court. There are going to be times when that happens,” David Orentlicher, a professor at Indiana University’s McKinney School of Law, said Tuesday.
Both states agree that the case should move rapidly through the legal process.
Hundreds of couples were married from June 25, when U.S. District Judge Richard Young struck down the state’s gay marriage ban, to June 27, when the 7th Circuit court stayed the decision.
The stay means that marriages performed during those three days are in legal limbo. The governor’s office said in a memo earlier this month that the state of Indiana won’t recognize those marriages.
ACLU of Indiana Legal Director Ken Falk said the marriages were legal, and sent a letter to U.S. Attorney General Eric Holder on July 11 asking him to issue a statement that the federal government will recognize the marriages as he did in Utah and Michigan, which would make Indiana’s couples eligible for federal benefits for married couples.
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