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Judges weigh 4 states' same-sex marriage cases

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Three federal judges weighing arguments in a landmark gay marriage hearing this week 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 judges in the 6th U.S. Circuit Court of Appeals 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.

Sutton repeatedly questioned attorneys for the same-sex couples whether the courts are the best place to legalize gay marriage, saying that 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 Sutton, a George W. Bush nominee. "Nothing happens as quickly as we'd like it."

Judge Martha Craig Daughtrey, a Bill Clinton nominee, 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 said. "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," Daughtrey said.

Constitutional law professors and court observers say that 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 Sutton, the least predictable judge on the panel. In 2011, he shocked Republicans and may have derailed his own chances to advance to the U.S. Supreme Court 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 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. "A marriage is a significant thing. It's solemn. It's precious. This can't be just subjected to a vote."

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, Kentucky, wore a wedding dress, and his partner, Matt Morris, wore a top hat and formal shirt.

"It's to make a statement, really," Bradford said. "We want to be married."

He said they were hopeful the court will rule in favor of same-sex marriage.

"One day, it's going to happen," he said. "You can't stop love."

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, Virginia, last week. On Tuesday, Utah appealed one of those rulings, asking the U.S. Supreme Court to take up the case and uphold its ban. 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 to take up Idaho's and Nevada's bans Sept. 8.

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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