State appeals gay marriage case to high court (UPDATE)

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Wisconsin Attorney General J.B. Van Hollen has asked the U.S. Supreme Court to reverse a ruling that the state’s gay marriage ban is unconstitutional.

Van Hollen, a Republican, filed the writ of certiorari Tuesday. The attorney general in Indiana, which had its ban declared unconstitutional along with Wisconsin’s, also filed a writ.

It is unclear when the high court might respond; its next term begins in October.

Similar decisions from the 4th and 10th circuits also have been put to the high court for review.

Civil rights advocates sued Wisconsin in February, saying the gay marriage ban violates same-sex couples’ equal protection and due process rights. Western District Judge Barbara Crabb declared the ban unconstitutional in June, and hundreds of gay couples wed before she put the ruling on hold a week later pending appeal.

The 7th U.S. Circuit Court of Appeals in Chicago upheld Crabb’s decision last week, rejecting Wisconsin’s argument that straight marriages are tradition and focusing on equal protection instead of due process, on which other judges have based their opinions.

Wisconsin’s gay marriage ban was codified by a constitutional amendment in 2006. According to the attorney general’s writ, Wisconsinites did this “when confronted with the real possibility that state court judges might find traditional marriage laws unconstitutional.”

Wisconsin’s writ also states that its case is the “ideal vehicle for resolving all constitutional questions relating to same-sex marriage” and that the 7th Circuit’s decision “is rife with judicial policymaking and the creation of new judge-made law.”

According to the writ:

“Cataloguing all of the varied and contradictory ‘tests’ in the 7th Circuit’s decision is unnecessary. The point is that it is not possible to ascertain any governing standard from the 7th Circuit’s decision. At most, the 7th Circuit applied a form of heightened scrutiny. At least, the 7th Circuit applied rational basis scrutiny and concluded that Wisconsin’s traditional marriage laws are irrational. The result is clear, but the methodology is not. That’s the problem.”

Same-sex marriages remain on hold in Wisconsin until the U.S. Supreme Court decides not to take the case or rules.

The Associated Press also contributed to this report.