August 6, 2014 at 5:31 pm EDT | by Chris Johnson
Marriage bans take a beating in Sixth Circuit arguments
Potter Stewart U.S. Courthouse, gay news, Washington Blade, Cincinnati, Ohio

Judges heard arguments for marriage lawsuits in four states at the Potter Stewart U.S. Courthouse. (Washington Blade photo by Chris Johnson)

CINCINNATI — State bans on same-sex marriage took a beating Wednesday from a three-judge panel during oral arguments before the U.S. Sixth Circuit Court of Appeals.

The three-hour arguments were historic because they marked the first time a court heard over the course of one day challenges to marriage bans in four states. The Sixth Circuit heard six lawsuits challenging laws in each of the states within its jurisdiction: Michigan, Ohio, Tennessee and Kentucky.

Based on their line of questioning, two judges — U.S. Circuit Judge Martha Craig Daughtrey and U.S. Circuit Judge Jeffrey Sutton — seemed prepared to rule against bans on same-sex marriage. The remaining judge, U.S. Circuit Judge Deborah Cook, was relatively quiet, but appeared poised to rule in favor of the laws. Similar to other federal appeals courts, the panel seems headed to make a 2-1 decision in favor of marriage equality.

Although Sutton didn’t make an effort to telegraph how he’d rule, throughout his questioning he suggested he believes  prohibition on gay nuptials are unconstitutional. Ruminating on the changing societal perception of marriage, Sutton said a ban a same-sex marriage “seems too hard to justify even on rational basis grounds” if the institution is intended to express love and commitment.

That said, Sutton also had tough questions for attorneys seeking to overturn bans on same-sex marriage, posing the inquiry of why the LGBT rights movement would want to proceed through the judicial process — as opposed to legislative and ballot process — if the desired result was changing hearts and minds to achieve greater acceptance.

But Daughtrey was the most skeptical of the three judges, invoking the 1967 U.S. Supreme Court decision on Loving v. Virginia, which ended state bans on interracial marriage, as precedent for a legal basis that the right to marry whom someone chooses is fundamental. Noting that 19 states already have legalized same-sex marriage, Daughtrey observed that “it doesn’t look like the sky is falling in.”

When state attorneys made the arguments that bans on same-sex marriage had a rational basis because the purpose of marriage was procreation, Daughtrey took them to task, repeatedly asking them why excluding same-sex couples from the institution was necessary when opposite-sex couples can procreate with or without marriage.

“There’s nothing about this that has stopped heterosexual couples from getting married [or] getting pregnant accidentally,” Daughtrey said.

Leigh Gross Latherow, the attorney for Kentucky, maintained the state’s position was that marriage enabled procreation, while the attorney for Tennessee, Joseph Frederick Whalen, III, simply refused to answer Daughtry’s questions.

Additionally, in response to arguments from lawyers that the democratic process should decide the marriage issue as opposed to the courts, Daughtrey said women’s rights movement took 78 years to achieve the right to vote before it was assured under the 19th Amendment to the U.S. Constitution.

As she maintained her point was sometimes the democratic process takes an extraordinary amount of time, Daughtrey joked about the figure she cited and said, “I just thought you’d like to know that in case you were ever on ‘Jeopardy,'” eliciting laughter from attendees in the courtroom.

Cook only spoke a handful times over the course of nearly four hours of marriage arguments, but when she did, she indicated bans on same-sex marriage could withstand scrutiny by the courts.

At one point, she suggested certain benefits and consistency for a state that only recognized opposite-sex marriages. When an attorney made the claim that bans on same-sex marriage created a two-class system, Cook posited that was only the result of the laws, not the intent.

The six lawsuits before the Sixth Circuit are DeBoer v. Snyder in Michigan; Tanco v. Haslam in Tennessee; Love v. Beshear and Bourke v. Beshear in Kentucky; and Henry v. Himes and Obergefell v. Himes in Ohio.

Each of the attorneys arguing against bans on same-sex marriage also had differing takes based on the differing nature of their lawsuits. For example, while attorneys for couples in Michigan and Kentucky were arguing were to right for same-sex couples to marry in those state, lawyers for couples in Tennessee and Ohio took narrower approach because they were seeking recognition of out-of-state unions.

Carole Margaret Stanyar, an attorney representing same-sex couples in the Michigan lawsuit, made the case that the state’s marriage ban had the effect of treating individuals in a same-sex relationship like strangers to each other.

“We are not seeking to redefine the marital relationship,” Stanyar said. “We are merely [asking] for the end of the exclusion of same-sex couples from the right to marry.”

After Sutton asked whether the 1972 marriage case known as Baker v. Nelson, which the Supreme Court declined to hear, should serve as precedent, Stanyar said she doesn’t believe so because the understanding of marriage has “evolved” since that time.

Following the Supreme Court ruling against the Defense of Marriage Act, Stanyar noted that “every single court in the country” has ruled for marriage equality despite Baker. Additionally, Stanyar observed the Supreme Court agreed to take up the challenge to California’s Proposition 8 after Baker, even though justices side-stepped the marriage issue by ruling on the basis of standing.

Alphonse Gerhardstein, an attorney representing same-sex couples in Ohio, on the other hand, said while he agrees with arguments presented in the Michigan case, the Buckeye State must recognize the out-of-state marriages of same-sex couples.

“I represent four couples; their kids deserve two parents,” Gerhardstein said. “They deserve them today.”

Additionally, Gerhardstein said language in the Ohio marriage law prohibiting not only same-sex marriage, but marriage-like unions, demonstrates a “real prejudice.”

“It’s saying get away from us as far as you can,” Gerhardstein said. “These are the kinds of things the Supreme Court looks at.”

Gerhardstein also said the ban on same-sex marriages harms the state, as well as children, because it makes it so same-sex parents who are negligent can’t be prosecuted under current law. The marriage ban, Gerhardstein said, creates the “practical problem of children not getting recognition of their parents.”

The discussion of whether animus was a motivating factor in passage of the marriage bans was most piqued when Laura Landenwich, an attorney for same-sex couples, made that a component of her argument that Kentucky’s law “places a badge of inferiority on people and families.”

“Animus in a constitutional sense does not mean bigotry and prejudice, it can mean thoughtless or insensitivity,” Landenwich said.

Landenwich urged the court to rule against Kentucky’s ban on same-sex marriage because its duty is to “protect the minority from the will of the majority.”

“The fundamental right to marry has not changed,” Landenwich said. “What has changed is a fundamental understanding of what it means to be gay and lesbian.”

William Harbison, attorney for Sherrard & Roe who’s litigating for same-sex couples in Tennessee, made the case that the law causes “extreme intrusion” into the lives of plaintiff same-sex couples seeking recognition of their unions.

“For the life of me, I cannot see the logical connection of the effect of the laws, which is excluding same-sex couples from marriage, and anything related to procreation,” Harbison said.

A common theme among lawyers defending marriage bans was that they served a governmental interest to enable procreation and ensure children have opposite-sex parents.

Michigan Solicitor General Aaron Lindstrom said the ban makes it “more likely a child will have both a mother and father” in a marriage established by the democratic process.

Asked by Daughtrey whether the state has a rational basis to exclude other couples from marriage, such as opposite-sex couples who can’t procreate, Lindstrom replied that scenario would be an infringement upon the fundamental right to marry.

In addition to making this argument on behalf of Kentucky, Latherow took aim at U.S. District Judge John Heyburn II for striking down the state’s marriage law in a decision that determined “homosexuals are a suspect class.”

“It was not necessary for him to make that ruling, but he made it nonetheless,” Latherow said.

Now that the Sixth Circuit has heard arguments, the next step is for judges to produce a ruling — or multiple rulings — to settle the lawsuits that are at hand.

James Esseks, director of the LGBT project at the American Civil Liberties Union, told the Washington Blade a decision could come in another month or two.

“I think at this point in time the courts of appeals appear in some kind of friendly competition in terms of deciding the issues, and having their say and weighing in because they all know it’s going to be fodder for what the Supreme Court is going to do,” Esseks said. “So, I think those judges are going to go back to their chambers and sit down and decide what they’re going to do, but then I think they’re going to sit down and start writing.”

But the sense that the U.S. Constitution guarantees the right of same-sex couples to marry was most clearly expressed by Stanyar at end of her argument.

“It can and must be interpreted to recognize a changing society,” Stanyar said. “There is no reason to treat people this way.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

  • Want to be free to do what others do.

  • Gays and Lesbians can be together, but it can't be called marriage because marriage is between a man and a women period. They are equal already just call there unions something else because it's not marriage. I know call it civil unions that sounds good and let them get all the perks married couples get the benefits and so fourth, but marriage is already taken by straight couples so let them come up with there own term for gay and lesbian couples, problem solved.

  • Your logic is flawed. Your belief that marriage is appropriate for opposite-sex couples only is not proof that it IS that way. The way the laws are written are being deemed unconstitutional. Just because one finds same-sex marriage "icky" doesn't mean it shouldn't exist.

  • They aren't equal. Some of the parties to the case are already married, the state is refusing to recognize that marriage, because of the genders of the couple.

  • Valerie Jones The constitution doesn't afford gays or lesbians the right to marriage as a matter of fact the U.S constitution doesn't even mention marriage. Gays and lesbians are using equality as an excuse to gain a right which has only been afforded a man and a women since humanity has been keeping record of itself, marriage. To allow gays to use the word marriage for there unions goes against what the principal of marriage is in its true essence the forming of a special bond between a man and a women which has the possibility of procreation of the human species. Let me ask you this if the world was full of gays and lesbians how the fuck would the human race continue to exist, it couldn't because gays and lesbians can't procreate the human species, so nature itself does not allow a method for gays and lesbians to procreate, so if nature does not recognize your union as valid I sure as hell wont either and neither should anyone else. Like I said you want to be together fine go ahead but its not marriage, call it what it is a civil union or make up a term, but marriage is taken by straight couples since the beginning of human history, sorry gays and lesbians tough cookies.

    • Traditional marriage from old times, isn’t one made out of ‘love’ but the reasons from a time, we no longer live in. Women have a say in life, women can own property, not be owned by their husbands and father before the marriage, as it was over one hundred years ago in the western world. Our founding American fathers, among those who owned slaves and the founding fathers’ wives, didn’t have a say in voting either. No one, wants to step into the shoes of a husband & wife. Besides, when a man and a woman, both ‘mature’, passed the age of wanting to have or able to have children, want to get married to one another, the logic, that marriage is for procreation, prevents two heterosexuals from marrying, if the two, cannot procreate. They can copulate, but cannot procreate. Why, would anyone want to deny, two single consenting adults the right to marry each other? Because, never has this been the way of the majority of humankind? Really? Because a man is to marry a woman and the two are to form a family, with the man as the head and the woman listening to her husband? Doesn’t this sound like NO MARRIAGE of today? (I’m sure, there are exceptions, but again, not the majority) Traditional marriage, if it ever existed, passed out of existence at least in the very early 1900s, if not before. Many missed it as it died and no one really noticed. Sadly, many think it’s still alive and they are keeping it kicking, when it’s a corpse that rotted its’ way into history. Let it go and live your life instead of in the bedroom of strangers, who might live happier than you.

  • Manny Carvajal It's an individual right to choose your partner in marriage. When women got the vote, did that change the definition of voting? No. And neither do gays getting married change the definition of marriage.

  • I have a hot news flash for you Manny Carvajal-we are human beings and gay human beings deserve the same benefits, end of story. Marriage should be allowed to all persons, not just straight people. Gays have been around since the beginning of time. Come on, you actually believe that woman was made from a man's rib???give me a break. The bible is a man made story book. When people get married they don't have to go to a freaking church. It is a legal institution and should be available equally. I am married to my husband and let me tell you wee are MARRIED…No civil unions for me as I am NOT a second class human being.

  • Mark Holbert Calling the Bible a a story book, ok! when you die and go to Heaven to meet god and Jesus to be judged you can explain that one to them on your own. Interesting how everyone dodged my question about nature not recognizing the union of gays by not making a method for gays or lesbians to procreate, if the world was full of gays and lesbians how the fuck would the human species go on existing please answer me that? Nature did not make a method for gays and lesbians to procreate for a reason, maybe because it's just plain wrong, the DNA of a man mixing with another man makes nothing and the DNA of a women mixing with another women makes nothing, but the DNA of man and women makes the most special thing known to us a human baby the procreation of our species. Marriage is special because it refers to this man and women special bond that is inherit in nature, the two coming together to make another human baby and progress our species further. Gays and lesbians should respect that marriage is for a man and a women, instead of starting there equality tantrum blah, blah, blah and second class citizen BS blah, blah, blah. The homosexual community has to give that argument a rest already, they say it all the time to get there way like little spoiled children.

  • Manny Carvajal-the answer to your lame question regarding procreation is simple…there wil always be straight people having kids they don't want putting them up for adoption. And, there is always the surrogate route. Gay marriage will not take the place of straight marriage, it is an addition to it.

  • Says who? Just because someone sleeps with the opposite sex, doesn't mean he/she gets special rights under the law. We pay the same taxes, we deserve, and will get, the same rights.

  • Manny Carvajal If there is a God, Manny, I think you're the one who's going to be surprised. Jesus never said a thing about homosexuality, even though it existed during the time of his purported existence. Every single bible quote used to justify your homophobia has an alternate explanation, one that's more credible than yours. So, when you choose to be homophobic, it's a lifestyle choice. You need to decide if you're going to use faith as an argument (the bible), science (when you're talking about DNA), or observed nature. Why do you think you know more about being gay, and how it occurs than gay people do? That's just foolish. Gay people make bonds with other gay people, that's in our nature. It's not our DNA that prevents two men from having children, incidentally. And we should "respect" your definition of marriage for no other reason than you demand it? Look who's the spoiled child stamping his foot that we should believe what he says, because he said it.

  • In this country we do not believe in the the principle of "Separate but Equal". Manny you need to pack your belongings and head to the Middle East. Because you are Un-American!

  • Manny Carvajal I use your magic book for toilet paper.

  • At this point, Manny, you are coming off as a troll. So to you I say, "Be gone!"

  • hnl95 Kiss my red, white and blue butt, just cause you don't like my opinion of gays and marriage doesn't mean I'm un-American. I love my country and have the right to practice my First Amendment on this websites comment section. Now if you are all mad because you know deep down inside I might be right, then you all have to learn to deal with it. Do some research and you'll discover that being gay starts out in the mothers womb the genes with attract you to the opposite sex during your development in the womb malfunction and cause you to become attracted to your own sex instead, it's been scientifically proven, so in essence being gay is a genetic malfunction and here's the scientific research to back up my statements.

  • Valerie Jones I see when someone tells you the truth and backs it up with scientific research you get all defense and call them a troll and run away, what's a matter you don't agree with the scientific facts now?

  • Manny Carvajal When same sex marriage becomes legal in all 50 states all the anti-gay religious zealots will finally be free to work on improving their own marriages instead of spying on and trying to control the bedroom activities of their neighbors. It's a win-win situation for everyone.

  • The argument about procreation was found to be invalid. Should heterosexual couples who cannot have children, be banned from marriage?

  • John Teixeira You analogy is flawed because in principal heterosexual couples have been designed by nature for the specific purpose of the procreation of there species. While some heterosexual couples cannot have children because of medical conditions etc, that does not validate the argument that homosexual couples have the same right to marriage as heterosexual couples do.

  • Sutton asked why proceed through the judicial process — as opposed to legislative and ballot process — if the desired result was changing hearts and minds to achieve greater acceptance.

    Simple answer: "My clients will be dead before Kentucky and Tennessee legislature pass marriage equality, your honor."

  • Manny Carvajal No, your argument is flawed. You state that because procreation is the purpose for marriage, homosexual couples should not be allowed to marry. Address, therefore, why heterosexuals who can't have kids should be allowed to marry. Marriage is more than just about procreation; it's about love, companionship, benefits, etc. We are not back in the days with Abraham and them. It's a new day. You spend so much time hating, I wonder if you are a closeted homosexual.

  • John Teixeira Lets just agree to disagree, I will not change your views on this subject just as you will not change mines. As for hate, your assumption of me hating homosexuals is wrong, I don't hate anyone. I simply disagree with there sexual lifestyle and there idea of marriage between two members of the same gender. I enjoy debating highly controversial subjects such as homosexuality and marriage, I'm well aware that we are in an advanced technical age and no longer in the days of Abraham, but thanks for pointing that out. Well it seems this debate has reached its end for me, as I see it as bating a dead dog with a stick now. To all god bless and goodnight.

  • Manny Carvajal your comments are so full of stupid, I don't even know where to start. But let's be clear – marriage doesn't make a blind bit of difference to conception. We could ban marriage tomorrow and babies would continue to be born. If by some very odd, weird and unlikely circumstance that allowing gays to marry will suddenly turn EVERYONE in the world gay (you realise how mind-numbingly stupid this sounds, yes) then gay men will still have sperm and gay women will still have ovaries. Ergo, I'm sure we'd find a way to keep the population going, albeit the children being brought into the world would actually be planned and wanted and not just accidental. But hey, you're clearly a closed-minded bigot with no power of independent thought so all of this will be lost on you anyway.

  • Heterosexual couples do not have to pass a fertility test or a child-rearing text to get a marriage license. This requirement exists only in the attorney’s arguments, not in the law they are defending. They define the plaintiffs sitting in the same room as not meeting the requirement, even though they do.

    In other words. The attorneys are inventing imaginary requirements to bar a minority group from marrying. How is this not animus?

  • There are about six people in this article who are mentioned by name, and for me at least it is confusing. Deep in the article it's hard to tell who's what. It says "Smith said A, Jones replied B, Johnson interjected C, then Smith said D. Who are the judges and who are the attorneys? It would be a lot clearer if it said, "Smith said A, Judge Jones replied B, Judge Johnson interjected C, then Smith said D." Or "Judge Smith said A, Jones replied B, Judge Johnson interjected C, then Judge Smith said D." Or whatever you mean.

  • I don’t see why there is debate. I was married legally in the “constitution state”, the state of Connecticut. I had my marriage solemnized by the priest of my local Episcopal (Episcopal is the name of the Anglican church in the United States (all Anglican churches are officiated by bishops and are national churches, not to be under the shepherding of a foreign)) parish, in the church where I have a membership “in good standing.” The idea that somehow Marriage is a name that’s left only to opposite sex couples is weird.

    My legally binding marriage by both state . . . ( traditionally any states legally performed marriage has been recognized as the norm and usually accepted as such when one goes home to ones own state). . . . the state of Connecticut in my case and my religion of choice which is the largest Christian denomination in the world, Anglican/Episcopal should be condidered marriage in vow, word and deed. We the people, my spouse and I, have done everything legally possible to get married. Marriage creates bonds that cannot be achieved by any other means, it protects property, it protects family and it protects the rights of our children to have two legal dads and possibly two legal moms. These are our rights. These are possibilities we only get when gay parents get married. I, and my spouse went to great lengths to get married legally and to have a Christian marriage and I had to travel with my soon to be spouse just to get married. Most people are able to just go around the corner to city hall in their locality. I had to rent a car and drive to Connecticut from Fort Lauderdale. I had to go to great expense to marry. Because my church will only solemnize legal marriages we had to do it legally. So, potentially the ethics behind my “gay” marriage are somewhat greater than the ethics involved in that straight marriage. I was married by a former marine, a priest, and a full church. I went dancing at the rainbow room on the top floor of Fort Lauderdale’s Bank of America with that same church (a traditional place to have one’s reception in Fort Lauderdale.) I feel blessed to have my spouse, I am blessed to have a supportive parish church, and I’m blessed to have a supportive bishop. Let’s continue on this path of good ethics!!!

  • Manny, There has been same sex unions since long before the bible was written. It is not something new but has been around for eons. The Romans had them, the Mesopotamians had them, the Egyptians had them and so on. marriage is a bond between 2 people who love each other, first and foremost.

  • Funny, I'm married to the guy in the picture with me and it has only benefited us and made us more equal in the eyes of the law. The definition of marriage has changed countless times of the centuries and for prejudice and blind ignorance to now try to block this evolution of human understanding is predicate upon a fallacy propagated by the GOP and the Fundamentalists of this country.

  • I'm more amused that the GOP decided to partner with the far Religious Right and decided to try and substitute Equal Rights with "popularity vote". That left the LGBT with essentially one avenue – which was to sue. GOP made a huge mistake and refuse to admit it. hee hee hee.

  • Manny Carvajal – Completely and utterly absent from your rhetoric: a good reason for denying same sex couples the right to get marrried.

    Thankfully, the country is waking up to the fact that you don't have a good argument to make. Consequently, that's why your definition, and its validity, is crumbling before your very eyes.

    Edit – Also, we all know Odin is the one true god; Thor is his son, wielder of Mjolnir. Repent now and discard your book of fables before the one true god!

  • Manny Carvajal if you are saying your ok with all the exact same terms then why have two names for it when it is exactly the same? That idea is flawed in it's self! Gay's and Lesbians can procreate using modern technologies and surrogate mothers. For that mater some that are married and straight are not getting married to have children and never do. That is also a flawed idea that you get married so you can have kids. Some never marry and have children and are very happy that way. I think you need to put more thought into why people get married and not say everyone does it for the same reasons.

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