Al Behrman / AP

Same-sex marriage foes have their day in court in Cincinnati

Three-judge federal panel hears appeals on six cases from four states as they make a probable journey to Supreme Court

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.

A parade of attorneys

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.”

The flyover states

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?”

No longer a partisan issue?

Cook, also a Bush appointee, was largely silent throughout the afternoon, with the exception of a few questions that seemed intended to help anti-gay-marriage attorneys hone their arguments. She is so known for her conservatism that she was on the short-list to be appointed to the Supreme Court for the vacancy filled by Samuel Alito.

One concern for Sutton was the fact that the Supreme Court passed last year on a prime opportunity to assert a federal right to marriage. At the same time the high court considered the Windsor case, it also dealt with Hollingsworth v Perry, an appeal of a federal court in California’s decision to strike down a gay marriage ban put in place by voters in 2008 via Proposition 8. The court dismissed that case — and in the process let the California decision stand — on technical legal grounds unrelated to the question of gay rights.

“It does seem fair to say the Supreme Court’s trajectory favors” the pro-gay side, Sutton said. Citing cases that went in favor of gay rights, he then noted, “but they didn’t reach today’s issue in Hollingsworth.”

The 6th Circuit presents gay marriage foes with their best opportunity so far to halt an unbroken streak of more than 30 state and federal cases that have gone for pro-gay groups since Windsor. Sutton and Cook are both appointees of the Bush administration, which vetted federal judge candidates to ensure their conservative bona fides.

That’s a shift from the 4th and 10th circuit panels, which were dominated by more liberal or moderate appointees. In all, 15 of the 22 federal judges who have ruled on gay-marriage bans were Democratic appointees.

“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,” said Michael Klarman, a gay-marriage proponent from Harvard Law School whose book was cited from the bench Wednesday by Sutton. “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.”

On the other hand, should the 6th Circuit follow the lead of the others, it would present powerful support for the argument that the question of same-sex marriage is no longer a partisan one. Several prominent Republicans, including Ohio Sen. Rob Portman, former House Speaker Newt Gingrich, former Vice President Dick Cheney and Fox anchor Bill O’Reilly, support same-sex marriage, although a 2014 Pew poll also shows only 39 percent of Republicans nationwide support it.

“The day is long past when these issues were seen as somehow partisan or even something that pits conservative judges against liberal judges,” 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.

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