Prohibitions on gay marriage or its recognition in four Midwest states may stand or fall on whether opponents of same-sex unions convinced appeals court judges the bans are justified as promoting heterosexual marriage and child-rearing.
The arguments yesterday before a trio of U.S. Court of Appeals judges in Cincinnati followed decisions in favor of gay marriage by two other appellate courts in Denver and Richmond, Virginia, since last year’s ruling by the U.S. Supreme Court that voided a federal law’s definition of marriage as being between one man and one woman.
The Cincinnati judges are reviewing lower-court rulings that struck down same-sex marriage bans in Michigan and Kentucky and decisions compelling Kentucky, Ohio and Tennessee to recognize gay couples who legally wed out of state. The panel of two Republican appointees and one Democrat didn’t reveal a clear consensus on how it will rule.
U.S. Circuit Judge Jeffrey S. Sutton, a 2003 appointee of Republican President George W. Bush, who occupied the panel’s middle seat, pressed attorneys from each side of the issue to defend their positions. U.S. Circuit Judge Deborah Cook, who was also named to the court by Bush, asked few questions during the hearing.
U.S. Circuit Judge Martha Daughtrey, an appointee of Democratic President Bill Clinton, was openly skeptical of state lawyers’ efforts to explain how preventing same-sex marriage advanced their stated interests in fostering child bearing and rearing in stable, heterosexual marriages.
“A fundamental right is a fundamental right,” Daughtrey told the lawyer defending Michigan’s law. “It’s as simple as that.”
“The state has an interest in marriage because marriage is linked to children,” and to how they’re cared for and whether they’re raised by both a mother and a father, said Aaron Lindstrom, Michigan’s attorney,
“What is the rational basis for excluding everybody else?” Daughtrey asked. She also challenged Lindstrom’s contention that allowing same-sex marriage would mean there is no institution to say it’s important to have a mother and father.
In states that already allow gay marriage, “it doesn’t look like the sky has fallen in,” she said.
Sutton, who in 2011 became the first Republican-appointed U.S. judge to rule in favor of upholding President Barack Obama’s signature health-care legislation, repeatedly raised the question of whether the better path toward same-sex marriage acceptance is through politics instead of the courts.
If proponents of a right to gay marriage seek respect and dignity, Sutton told Carole Stanyar, the attorney representing a lesbian couple that challenged he state’s ban, maybe the best way to get those things “is through the democratic process” and incremental change.
Michigan’s prohibition “gutted the democratic process,” Stanyar replied while arguing that fundamental rights can’t be subject to popular vote.
Sutton also had an exchange with Lindstrom about the notion that marriage has evolved from an institution primarily focused on procreation to one more centered on love and commitment.
“It’s difficult to see the difference between one group, eligible, and another group, not,” the judge said.
Since the U.S. Supreme Court 5-4 decision in June 2013 that gutted the federal Defense of Marriage Act, state and federal judges have invalidated gay-marriage bans in 14 states.
Utah two days ago petitioned the Supreme Court for review of that June ruling by the U.S. Court of Appeals in Denver that concluded the state’s ban is unconstitutional. A Tulsa County, Oklahoma, court clerk yesterday asked the high court to review a July ruling by the Denver panel reaching the same result.
Virginia Attorney General Mark Herring said he too will seek Supreme Court review of the case from his state.
The Cincinnati panel yesterday also heard argument over Ohio rulings allowing gay couples to be represented on death certificates and same-sex spouses to be named on birth certificates.
All of the decisions before the panel have been put on hold pending its review. A reversal of the Michigan or Kentucky decisions will create a split with the other two regional appellate courts, making high court review more likely.
“I don’t think anyone’s under the illusion this is the end,” Sutton after the last of yesterday’s arguments concluded.
A ruling against same-sex marriage would be a “hugely important” step toward the top court’s review, A. Christopher Bryant, a University of Cincinnati law professor, said before yesterday’s hearing.
If the panel concludes the U.S. Constitution requires Michigan and Kentucky to allow same-sex marriage, “there would be no basis for denying recognition of marriage celebrated anywhere else,” Bryant said.
Lawyers for the Scottsdale, Arizona-based Alliance Defending Freedom and the Washington-based National Organization for Marriage, each of which have fought the expansion of same-sex marriage rights, said the issue is bound to return to the Supreme Court regardless of what happens in Cincinnati.
“In general, the circuit split is the golden ticket to the Supreme Court,” Austin Nimocks, a lawyer for the Arizona group, said in a phone interview before yesterday’s hearing. “I think the nationwide dynamic of this, with lawsuits everywhere, will have the Supreme Court taking a look at this regardless of whether there’s a circuit split.”
The cases are DeBoer v. Snyder, 14-1341, Obergefell v. Himes, 14-3057, Henry v. Himes, 14-3464, Bourke v. Beshear, 14-5291, Love v. Beshear, 14-5818 and Tanco v. Haslam, 14-5297, U.S. Court of Appeals, Sixth Circuit (Cincinnati).