CINCINNATI — Hammering both sides with equal verve during an afternoon of hearings on six different gay marriage cases from four states, Circuit Court Judge Jeffrey S. Sutton on Wednesday positioned himself as a swing vote who may either extend gay advocates’ legal winning streak or give opponents their first good news in more than a year.
Sutton, flanked on a three-judge panel at the Sixth Circuit Court of Appeals that included one outspoken liberal and one well-known conservative, was both inscrutable and seemed at times tortured as he weighed the impact of marriage bans for same-sex couples against concerns that courts were pushing the issue on the U.S. public too fast.
“Maybe originally marriage was about procreation, but today it’s really about love, affection and commitment,” Sutton said within the first 15 minutes of the hearing, interrupting an attorney for the state of Michigan who insisted the state has an interest in fostering heterosexual marriage for the good of children. “If you see marriage through that lens, it does seem difficult to justify why it’s OK for one group to be allowed to marry but not another.”
Yet later in the proceedings, Sutton — an appointee of President George W. Bush and former law clerk for conservative Supreme Court Justice Antonin Scalia — ruminated that allowing state legislatures and populaces to change their minds might be a better path than judicial fiat for gay couples.
“Don’t you think,” he asked the attorney fighting Michigan’s gay marriage ban, “you’re more likely to change hearts and minds by using the democratic process?”
Either way, Sutton acknowledged in his final remark before adjourning that the panel’s rulings, due by September, will be “interim.” That is, he expected the U.S. Supreme Court, which is the only judicial layer above the 12 regional circuit courts, to clarify within the next year whether there’s a constitutional right to marry.
The Sixth is the third circuit court this summer to hear appeals on a spate of lower federal court decisions that struck down as unconstitutional state bans on gay marriage around the nation. Two other circuits — the 4th in Richmond, Va., and 10th in Denver — both ruled 2-1 earlier this summer that the 2013 Supreme Court ruling known as Windsor v U.S. meant the high court is no longer tolerant of limiting marriage to opposite sex couples.
In fact, at the same time as Sutton, Judges Deborah Cook and Martha Craig Daughtrey were listening to the parade of attorneys from Michigan, Ohio, Kentucky and Tennessee in their Cincinnati courthouse, Oklahoma attorneys filed an appeal to the Supreme Court of the 10thcircuit decision, which involved cases from Oklahoma and Utah.
It is unclear which case or cases the Supreme Court may take, but the 6th Circuit cases are more likely to be among them if Wednesday’s panel issues a decision that conflicts with the pro-gay-marriage tenor of the 4th and 10th Circuits.
The 6th Circuit consolidated the appeals of cases from the four states because they largely dealt with the same questions: Do states have the right to define marriage as they wish? Or are gay couples entitled to the same marriage rights as heterosexual couples even if voters of a state dictated they can’t have them? Gay advocates believe the rights of minorities should not be subject to popular votes, but attorneys defending state bans insisted the public’s wishes ought to be respected and upheld.
“The fundamental principle here is that the people can be trusted to decide,” Michigan solicitor general Aaron Lindstrom said. “It’s about who gets to decide the definition of marriage, not what that definition should be.”
Sutton repeatedly made it clear he views full, national legal same-sex marriage as inevitable, but he returned repeatedly to the idea that the country was still not quite at a tipping point. More than 20 states and the District of Columbia allow gay marriage, meaning that more than 44 percent of Americans live in gay-marriage states, as attorneys in the Ohio case mentioned.
Scott Mishler, who opposes same-sex marriage, prays outside the U.S. Courthouse in Cincinnati on Wednesday, Aug. 6, 2014.Al Behrman / AP
“What’s a little odd is that [gay marriage proponents] don’t show much tolerance for the democratic process because it doesn’t happen as fast as they’d like,” Sutton said to Michigan attorney Carole Stanyar, who represented a lesbian couple from suburban Detroit suing for the right to both be full legal guardians of their children.
Stanyar replied that gay couples and their children shouldn’t be forced to wait and that there’s no evidence the political sea change that has occurred on gay marriage in other states is happening in the states under the 6th Circuit’s jurisdiction.
“We are the flyover states,” Stanyer said. “Tennessee, Michigan, Ohio, Kentucky, nothing has happened in those states to help gay people in decades. The wait-and-see approach is not a rational basis.”
Sutton’s idea seemed to rankle Daughtrey, an appointee of President Bill Clinton who was outspoken in equating the rights of gays to marry that of interracial couples. She doubted that interracial marriage or other civil rights for racial minorities would exist today in some parts of the country were it not for federal court decisions.
She further noted that the hearts-and-minds approach has in many instances taken decades if not centuries in the United States. “Would you be surprised,” she asked Ohio attorney Eric Murphy,” to find out it took 78 years of going to school boards and state legislatures trying to get women the right to vote and that it didn’t work? There had to be an amendment” to the U.S. Constitution, she said.
“What is the rational basis of excluding anyone else?” Daughtrey asked Lindstrom earlier in the proceedings, sounding a theme she’d return to repeatedly when other attorneys would insist marriage’s purpose is primarily to foster procreation. “Isn’t it hypocritical to allow people who can’t procreate to marry but prohibit same-sex couples who have children?”