After an unbroken streak of court defeats stretching back nearly a year, the dispirited foes of same-sex marriage turn this week to an extraordinary day of testimony on the matter in Cincinnati that they hope will disprove the growing sense that marriage equality nationwide is inevitable.
The 6th Circuit Court of Appeals is scheduled on Wednesday to hear six cases from four states — Michigan, Tennessee, Kentucky and Ohio — where federal judges have ruled in recent months in favor of gay couples seeking marriage rights. Many on both sides view the Cincinnati proceedings as yet another sign the issue is rapidly approaching a grand finale in the form of U.S. Supreme Court consideration.
“This is the most marriage equality cases ever heard in one court at one time, but the underlying situation is kind of incredible as well,” said Shannon Minter, legal director of the National Center for Lesbian Rights, which is a plaintiff in the case challenging Tennessee’s same-sex-marriage ban. “It just so happened they had six cases that affected every state in the circuit in the same time frame. It does make sense to assign them to the same judging panel, since they all present either identical or closely related issues.”
The marathon session allots attorneys on each side of each case time to make their arguments and reply to questions from the judges. Lawyers in the Michigan case are scheduled to go first and receive the most time because, unlike in every other pending federal case in the nation, Judge Bernard Friedman held a full trial featuring several witnesses before striking down that state’s gay marriage ban in March.
A ruling from the 6th Circuit could come as soon as the end of the month. A three-judge panel of the 7th Circuit is scheduled to hear appeal arguments in Chicago on Aug. 26 after district court rulings against marriage bans in Indiana and Wisconsin, and a three-judge panel at the 9th Circuit will hear arguments in San Francisco on cases from Nevada, Idaho and Hawaii on Sept. 8. Most observers believe the Supreme Court will take one or more of the cases heard by circuit courts as soon as this fall to settle the question nationally.
A powerful wind
Those still trying to restrict legal marriage to a man and a woman acknowledge they are fighting against a powerful wind, one that seemed reliably at their backs in court and at the ballot box until recently.
Then in June 2013, the U.S. Supreme Court struck down the Defense of Marriage Act on grounds that gay couples are due constitutional protection against discrimination. That case, United States v. Windsor, has been cited in nearly every one of the more than 30 federal district court or state Supreme Court cases that have gone in the favor of gay advocates, including cases in the past month at the 4th Circuit in Richmond, Virginia, and 10th Circuit in Denver. The circuit court level is just below the U.S. Supreme Court.
Same-sex marriage is now legal in 19 states and the District of Columbia, with bans in every other state now subject to court challenges. What’s more, public opinion has dramatically shifted — 59 percent of respondents supported it in a March 2014 Washington Post/ABC News poll, up from 37 percent in the same poll as recently as 2005 — leaving opponents angry and frustrated by their sudden minority status.
“We keep making the argument of the importance of marriage, that it takes a man and a woman to make a child and that the state can’t continue to redefine that if civilization’s policy goal is to support families rather than water down marriage to be about any adult relationship,” said former Chapman University Law School dean John Eastman, a constitutional law scholar and chairman of the National Organization for Marriage (NOM). “These judges keep saying that’s not what marriage is. Based on what? It’s like we’re in Stalinist Russia.”
Anti-gay-marriage forces, once capable of winning dozens of statewide ballot initiatives banning it, are now fractured and discombobulated. Eastman, for instance, became chairman of the NOM after one of its founders stepped down and then declared the fight lost. Other key figures, including the attorney who argued against gay marriage in California and a key conservative leader who spent years attacking the concept, have similarly changed their tone.
A cause with life left in it
By contrast, attorneys for gay couples in the six cases to be heard this week have held conference calls to plot legal strategy, gay groups plan a rally on Tuesday evening in Cincinnati, and journalists have been invited to a ballroom near the courthouse on Wednesday to interview the couples suing to marry. No organized demonstration is planned for the gay-marriage opponents nor has a media strategy been set forth.
Same-sex-marriage supporters in Columbus, Ohio, in May 2014. Ohio is one of four states this week appealing court decisions against bans on gay marriage.Ann Sanner/AP
Despite their losing streak, Eastman and others say their cause still has some life left in it. For one thing, Eastman noted, both rulings at the 4th and 10th circuits were 2-1, meaning that one judge on each panel sided with gay-marriage opponents. He complained that some governors and state attorneys general have refused to defend their states’ bans — an abdication of duty that weakened the defense of the bans in the federal district courts.
“The only plausible grounds to not defend a statute is that there’s no possible basis for defense,” he said. “When you’ve got two highly regarded judges [at the 4th and 10th circuits] ruling that the marriage laws should be upheld, there is clearly a basis.”
In Cincinnati this week, that won’t be much of an issue. Attorneys representing all four states will be there to offer their defenses, much of which is likely to focus on the fact that federal judges struck down voter-approved bans on gay marriage. Attorneys believe that the judges who did so misinterpreted Justice Anthony Kennedy’s opinion in Windsor as establishing federal protection from discrimination for gay couples when, they claim, he actually asserted states’ right to define marriage as they wish.
The 6th Circuit cases “are only a prelude to the Supreme Court’s answering the question whether the people are free to affirm man-woman marriage,” said Jim Campbell, an attorney for the Arizona-based Alliance Defending Freedom, a group that is trying to defend marriage bans in Oklahoma and Virginia. “If the high court remains consistent with its acknowledgment in its Windsor decision of the authority of states to define marriage, the people throughout the various states will ultimately be free to preserve man-woman marriage should they choose to do so.”
Prior to the persistent string of pro-gay decisions, many legal experts agreed that Campbell’s view might draw some anti-gay rulings. Harvard Law professor Michael Klarman, a same-sex-marriage proponent, saw Kennedy’s opinion in Windsor as unclear and noted that it’s still likely more-conservative federal judges will rule differently, perhaps even at the 6th Circuit, where two of Wednesday’s three panelists were appointed by President George W. Bush. “I would guess that when the cases from the Deep South get decided, the chances will increase that some of the rulings will go against gay marriage,” Klarman said.
Eastman, in fact, blamed the pro-gay streak of federal rulings squarely on the fact that gay marriage is “the political cause celebre of the day” and that public opinion is influencing “justices who are known largely, though not exclusively, for being activist political judges” appointed by Democratic Presidents Barack Obama and Bill Clinton. “This is just raw politics,” he groused.
But just seven of the 22 federal judges who have ruled in the various federal cases since Windsor were appointees of Democratic presidents. Friedman, who ruled in the Michigan case, was appointed by Ronald Reagan, and the judge in the two Kentucky cases now at the 6th Circuit was appointed by George H.W. Bush.
Klarman agreed the pro-gay streak is partly a matter of the luck of the draw in terms of which federal judges were assigned to the cases. Still, he said, a broader shift is taking place.
“I do think that the lower-court judges have been ruling based on their ideology, but what I wouldn’t have predicted was that so many Republican-appointed lower-court judges would now be fine with same-sex marriage,” he said. “It has to be true that there are still plenty of Republican-appointed federal court judges who disagree with same-sex marriage and would rule that it is not constitutionally protected. But by pure chance, none of them has been presiding over the couple of dozen cases thus far decided.”