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.”