Judges weigh four states’ same-sex marriage cases

6th Circuit could be first court to uphold statewide bans

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CINCINNATI — Three fed­eral judges weigh­ing ar­gu­ments in a land­mark gay mar­riage hear­ing Wed­nes­day pep­pered at­tor­neys on both sides with tough ques­tions, with one judge ex­press­ing deep skep­ti­cism about whether courts are the ideal set­ting for ma­jor so­cial change, and an­other say­ing the demo­cratic pro­cess can be too slow.

The 6th U.S. Cir­cuit Court of Ap­peals judges con­sid­ered ar­gu­ments in six cases from Mich­i­gan, Ohio, Ken­tucky and Ten­nes­see, set­ting the stage for his­toric rul­ings in each state that would put more pres­sure on the U.S. Supreme Court to de­cide the is­sue once and for all. Wed­nes­day’s hear­ing was the big­gest so far on the is­sue.

The cases pit states’ rights and tra­di­tional, con­ser­va­tive val­ues against what plain­tiffs’ at­tor­neys say is a fun­da­men­tal right to marry un­der the U.S. Con­sti­tu­tion.

While ques­tions and com­ments from two of the judges all but gave away how they’ll rule, one in fa­vor of gay mar­riage and one op­posed, Judge Jef­frey S. Sut­ton vig­or­ously chal­lenged some of each side’s as­ser­tions.

Judge Sut­ton re­peat­edly ques­tioned at­tor­neys for the same-sex cou­ples about whether the courts are the best place to le­gal­ize gay mar­riage, say­ing the way to win Amer­i­cans’ hearts and minds is to wait un­til they’re ready to vote for it. “I would have thought the best way to get re­spect and dig­nity is through the demo­cratic pro­cess,” said Judge Sut­ton, nom­i­nated by Re­pub­li­can for­mer Pres­i­dent George W. Bush. “Noth­ing hap­pens as quickly as we’d like it.”

Judge Martha Craig Daught­rey, a nom­i­nee of Demo­cratic for­mer Pres­i­dent Bill Clin­ton, said that his­tor­i­cally, courts have had to in­ter­vene when in­di­vid­ual con­sti­tu­tional rights are be­ing vi­o­lated, such as over­turn­ing state laws against in­ter­ra­cial mar­riage and giv­ing women the right to vote, point­ing out that the lat­ter took de­cades.“Do you have any knowl­edge of how many years I’m talk­ing about, go­ing into ev­ery state, ev­ery city, ev­ery state board of elec­tions, for 70 years?” she asked. “It didn’t work. It took an amend­ment to the Con­sti­tu­tion.” Be­sides, gay mar­riage al­ready is le­gal in more than a quar­ter of the states, and “it doesn’t look like the sky has fallen in,” Judge Daught­rey said.

Con­sti­tu­tional law pro­fes­sors and court ob­serv­ers say the 6th Cir­cuit could be the first to up­hold state­wide bans on gay mar­riage fol­low­ing an un­bro­ken string of more than 20 rul­ings in the past eight months that have gone the other way. They point to Judge Sut­ton, the least pre­dict­able judge on the panel. In 2011, he shocked Re­pub­li­cans when he be­came the de­cid­ing vote in a rul­ing that up­held Pres­i­dent Barack Obama’s health care law.

If the 6th Cir­cuit de­cides against gay mar­riage, it would cre­ate a di­vide among fed­eral ap­pel­late courts and put pres­sure on the U.S. Supreme Court to set­tle the is­sue in its 2015 ses­sion. The panel did not in­di­cate when it would rule.

At­tor­neys for each state de­fended their mar­riage bans, ar­gu­ing that any change should come from vot­ers, and that same-sex mar­riage is too new to be con­sid­ered a deeply rooted, fun­da­men­tal right. “The most ba­sic right we have as a peo­ple is to de­cide pub­lic pol­icy ques­tions on our own,” said Mich­i­gan’s so­lic­i­tor gen­eral, Aaron Lind­strom.

Leigh Lathe­row, hired by Ken­tucky Gov. Steve Bes­hear, told the judges that the state has an eco­nomic in­ter­est in en­cour­ag­ing het­ero­sex­ual mar­riage, which can lead to pro­cre­ation. And Ten­nes­see As­so­ci­ate So­lic­i­tor Joseph Whalen said Ten­nes­see’s law bar­ring rec­og­ni­tion of out-of-state gay mar­riages en­sures that chil­dren are born into a sta­ble fam­ily en­vi­ron­ment.

At­tor­neys for the same-sex cou­ples said mar­riage is fun­da­men­tal for ev­ery­one and should not be de­cided by pop­u­lar votes. “These rights are very, very pro­found,” said Al Ger­hard­stein, a Cin­cin­nati civil rights at­tor­ney rep­re­sent­ing the Ohio plain­tiffs.

Carole Stan­yar, who rep­resents the same-sex Mich­i­gan plain­tiffs, be­moaned the of­ten-slow pace of the demo­cratic pro­cess and said she doesn’t see such a change com­ing to her state any time soon. “In my state, noth­ing is hap­pen­ing to help gay peo­ple,” she said.

Out­side the court­house, ad­vo­cates held up ban­ners and signs urg­ing mar­riage equal­ity. Jon Brad­ford, 26, of Cov­ing­ton, Ky., wore a wed­ding dress, and his part­ner, Matt Mor­ris, wore a top hat and for­mal shirt.

He said they were hope­ful that the court will rule in fa­vor of same-sex mar­riage. “You can’t stop love,” he said.

About a dozen op­po­nents prayed the ro­sary out­side the court­house. “I’m just pray­ing for God’s will to be done,” said Jeff Parker, 53, from the Cin­cin­nati sub­urb of Ma­deira.

Gay mar­riage is le­gal in 19 states and the Dis­trict of Co­lum­bia. Other states’ bans are tied up in courts.

Two fed­eral ap­peals courts have ruled in fa­vor of gay mar­riage — one in Den­ver in June and an­other in Rich­mond, Va., last week. On Tues­day, Utah ap­pealed the Den­ver court’s rul­ing against its ban, ask­ing the U.S. Supreme Court to take up the case and up­hold it in­stead. Okla­homa fol­lowed suit Wed­nes­day.

The 6th Cir­cuit is the first of three fed­eral ap­peals courts to hear ar­gu­ments from mul­ti­ple states in com­ing weeks. The 7th Cir­cuit in Chi­cago has sim­i­lar ar­gu­ments set for Aug. 26 for bans in Wis­con­sin and In­di­ana. The 9th Cir­cuit in San Fran­cisco is set to take up Idaho’s and Ne­vada’s bans Sept. 8.

michigan - United States - North America - United States government - Ohio - Barack Obama - Bill Clinton - George W. Bush - Kentucky - Supreme Court of the United States - Cincinnati - Steve Beshear


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