ILNews

Judges weigh 4 states' same-sex marriage cases

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  2. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  3. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  4. A high ranking bureaucrat with Ind sup court is heading up an organization celebrating the formal N word!!! She must resign and denounce! http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  5. ND2019, don't try to confuse the Left with facts. Their ideologies trump facts, trump due process, trump court rules, even trump federal statutes. I hold the proof if interested. Facts matter only to those who are not on an agenda-first mission.

ADVERTISEMENT