By Lisa Keen
Keen News Service
The three-judge panel of the Sixth Circuit U.S. Court of Appeals seemed to signal pretty clearly where they’re headed on the six marriage equality lawsuits they heard arguments in Wednesday: They’re heading toward the first federal appeals ruling to undo lower court rulings that held state bans on marriage for same-sex couples to be unconstitutional.
The judges at the Aug. 6 hearing in Cincinnati included one appointee of President Clinton–Martha Craig Daughtrey, 72–and two appointees of President George W. Bush: Jeffrey Sutton, 53, and Deborah Cook, 62.
The Democratic appointee, Daughtrey, was unabashed in her expressions of skepticism over the reasons the states proffered for justifying the exclusion of same-sex couples. But the two Republican appointees gave repeated voice to various justifications for the bans.
Republican Cook, for instance, had relatively little to say or ask during the unusual three-hour, four-state, six lawsuit proceeding. But when she did speak, she seemed to be feeding lines to the attorneys arguing in support of the marriage bans in Kentucky, Michigan, Ohio and Tennessee.
For example, Michigan Solicitor General Aaron Lindstrom seemed unable to extract himself from a tough line of questioning from Judge Daughtrey. Daughtrey pressed Lindstrom to explain why Michigan allows male-female couples who don’t procreate to marry but doesn’t allow same-sex couples to marry even when some of them have children.
“Isn’t it a little hypocritical then to allow people to marry who can’t procreate but prevent same-sex partners from marrying?” asked Daughtery. Lindstrom said “not at all,” but then added only that opposite sex couples have a fundamental right to marry.
Cook interrupted saying, “You would acknowledge that there are … important benefits to the state beyond procreation, I should think … the benefits and responsibilities attendant to marriage seem to bear on the question we’re addressing here—is whether or not those matter to a state that says, as Virginia did, saying ‘We have no interest in licensing adult love.'”
Later, Daughtrey pushed back on Lindstrom’s claim that allowing same-sex marriage would lead to a society in which there would be no support for the contribution of fathers.
“Do you honestly think that’s what’s happened in the states where same-sex marriage is now valid?” asked Daughtrey. Lindstrom said it was “too early to tell,” being only 10 years into the history of allowing same-sex couples to marry in some states. Daughtrey noted that a large percentage of states have marriage equality “and it doesn’t look like the sky has fallen in.” Again, Lindstrom said it was “too early to tell.”
Cook soon jumped in.
“Isn’t it your point, Mr. Lindstrom, that it’s disparaging the vote of the citizens of Michigan?” Lindstrom quickly accepted the point.
Republican Sutton, at 53, the youngest of the three judges, initially seemed to find the marriage bans “a little harder to justify,” given “modern conceptions of marriage as being more about love and commitment.” But he quickly changed his tune when Carol Stanyard, the attorney for the Michigan plaintiffs, presented her argument. Then, Sutton trotted out the unusual position that a 1972 summary dismissal of Minnesota’s refusal to grant a gay male couple a marriage license–in Baker v. Nelson—could require the appeals panel to uphold the bans by other states.
“Aren’t we stuck with Baker?” asked Sutton.
Stanyard said no, “it was a different time” and the Supreme Court’s rulings subsequent to Baker have been “totally inconsistent with Baker” and strongly suggest the high court would no longer take the same position today. She also noted that “every court in the country” that has ruled on state marriage bans has found Baker does not apply.
In addition to his unusual interest in Baker, what stood out as most important to Sutton was his repeated posits that the “best way” for the LGBT community to achieve equality for its relationships is through “the democratic process.” Although same-sex couples are looking for concrete benefits of marriage, he said the many of the briefs filed by plaintiffs in the case emphasized the respect and dignity that are bestowed upon relationships called marriage.
“And if respect and dignity are critical, or the key elements here–maybe this is just something I’m missing but—I would have thought the best way to get respect and dignity is through the democratic process,” said Sutton. “Forcing one’s neighbors, co-employees, friends to recognize that these marriages…deserve the same respect as in a heterosexual couple. It’s just funny to me why the democratic process, which seems to be going pretty well–you know, nothing happens as quickly as we might like—but I’m just curious how you react to that point.”
Stanyard replied that the Michigan amendment banning same-sex couples from marrying “gutted the democratic process in Michigan.”
“Voters can no longer appeal to their legislators,” said Stanyard. “Second, the usual deference to the legislative process evaporates if there’s a reason to infer antipathy…And there are plenty of reasons to infer antipathy here.”
Sutton wouldn’t give up. He said that, if the issue was put before Michigan voters again, “It would certainly be a different vote and it might be a different outcome, even today.”
Stanyard noted that to get a measure on the ballot takes thousands of signatures and millions of dollars.
“It’s very cost prohibitive for a disfavored minority to be doing that,” said Stanyard.
“But it’s all about changing the hearts and minds, which I have to believe is one of the key goals,” said Sutton, interrupting. “Isn’t it worth the expense?”
Stating the obvious, Stanyard replied, “Fundamental constitutional rights may not be submitted to popular vote.” When Sutton persisted still, she put the point even more bluntly, “This court doesn’t have the luxury of dodging a constitutional challenge.”
Sutton persisted, bringing the point up again with other attorneys in different ways. With long-time civil rights attorney Al Gephardstein, who was representing plaintiffs in one of the Ohio cases, Sutton said, “Isn’t the first question whether a state can decide for its own purposes…whether to recognize same-sex marriage? And if it decides it’s not going to do that for now, and if the U.S. Constitution permits that choice, I guess it seems really odd to me that [the state] can be told” to recognize a marriage license obtained by a same-sex couple in another state.
Gephardstein noted that, historically, the recognition of marriages from other states has been “transportable.” It’s not about whether a certain state must define marriage a certain way, said Gephardstein, it’s about “if you have a pattern and practice over time that you’re only changing because of the type of people that now participate in marriage.”
“It is unprecedented that Ohio would say to a whole group of people who are married in another state, we’re not going to accept you as people that we will recognize as married here,” said Gephardstein.
Cook interjected that the couples who married in other states and then moved to Ohio were “well aware” that they were moving into a state where their marriages were not recognized.
“They got married because they’re in love,” said Gephardstein. “…They do expect their marriage will be transportable. That’s a reasonable expectation.”
Sutton jumped back in to note that the democratic process is “working very quickly” in favor of same-sex couples.
“The ultimate role of the federal courts is to keep states from denying the liberty to certain citizens,” said Gephardstein. “And here, when you’ve got citizens who have a liberty interest–their marriage already exists…and they’ve got children and those children deserve to have two parents and the state is now saying that, because of our commitment to [the democratic process], we’re just going to say no to you and we’re just going to wait for you to come up with $7 million and reverse our constitutional amendment. The reality is that these rights are very, very profound…This can’t be just subject to vote.”
Whatever decision the 6th Circuit panel comes back with–and some may argue that the questions and comments a judge makes on the bench are not necessarily illustrative of how they are leaning—it will affect all four of the states in that circuit. And it will almost certainly be appealed to the U.S. Supreme Court where cases from two other circuits –the 10th and the 4th–are either already there or about to be filed.
A 6th Circuit appeal–particularly if it is a loss for same-sex couples—could potentially make a more attractive vehicle for the Supreme Court’s ultimate decision on the issue. The loss or denial of the right to marry becomes an injury to a party that requires the high court’s attention.
The cases involved in the 6th Circuit appeal encompass six lawsuits in four states: Kentucky (Bourke v. Beshear and Love v. Beshear), Michigan (DeBoer v. Snyder), Ohio (Henry v. Himes and Obergefell v. Himes) and Tennessee (Tanco v. Haslam).
Three-judge panels of three previous circuits have each voted 2 to 1 that the state bans were unconstitutional: the 9th Circuit (a California case, Brown v. Perry, in February 2012), the 10th Circuit (a Utah case, Herbert v. Kitchen, on June 25 this year and an Oklahoma case, Bishop v. Oklahoma, on July 18 this year) and the 4th Circuit (two Virginia cases, Bostic v. Schaefer and Harris v. McDonnell, on July 29 this year).
The California decision, striking down Proposition 8, was left intact by the U.S. Supreme Court in June 2013 after the high court said the party that appealed the decision did not have legal standing to do so (in part because the appellants had not suffered an injury). That decision, in Perry, triggered more than 70 similar lawsuits in every state in the country that banned equal rights to marriage for same-sex couples. These cases are all percolating through the federal court system and one or more of them could very well be heard in the upcoming 2014-15 session, with a decision being issued by June.
Recordings of the 6th Circuit proceeding can be heard on the court’s website.