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A Few Takes on Yesterday's Historic Gay Marriage Arguments at the Sixth Circuit Court of Appeals

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Here are a few takes on yesterday's historic hearing of six separate gay marriage cases from Ohio, Kentucky, Michigan, and Tennessee, at the Sixth Circuit Court of Appeals. Above, Judges Martha Daughtrey, Jeffrey Sutton, and Deborah Cook.

Our legal editor Ari Ezra Waldman posted a preview of the arguments yesterday and will have some analysis coming up. For now, here are a few excerpts from various media reports.

Listen to audio from the proceedings HERE.

The Washington Blade:

Based on their line of questioning, two judges — U.S. Circuit Judge Martha Craig Daughtrey and U.S. Circuit Judge Jeffrey Sutton — seemed prepared to rule against bans on same-sex marriage. The remaining judge, U.S. Circuit Judge Deborah Cook, was relatively quiet, but appeared poised to rule in favor of the laws. Similar to other federal appeals courts, the panel seems headed to make a 2-1 decision in favor of marriage equality.

Although Sutton didn’t make an effort to telegraph how he’d rule, throughout his questioning he suggested he believes  prohibition on gay nuptials are unconstitutional. Ruminating on the changing societal perception of marriage, Sutton said a ban a same-sex marriage “seems to hard to justify even on rational basis grounds” if the institution is intended to express love and commitment.

That said, Sutton also had tough questions for attorneys seeking to overturn bans on same-sex marriage, posing the inquiry of why the LGBT rights movement would want to proceed through the judicial process — as opposed to legislative and ballot process — if the desired result was changing hearts and minds to achieve greater acceptance.

The NYT:

In three hours of back-and-forth questioning, it appeared that neither side could take victory for granted in the United States Court of Appeals for the Sixth Circuit, where the cases from Kentucky, Michigan, Ohio and Tennessee were heard by two judges appointed by President George W. Bush and one by President Bill Clinton.

Judge Jeffrey S. Sutton, one of the Bush appointees and a likely swing vote among the three, repeatedly asked why gay rights advocates wanted to use the courts to hasten an outcome they were gradually winning through elections and changes in attitude.

“I’d have thought the best way to get respect and dignity is through the democratic process,” he said, expressing a view that, in practice, would most likely deliver a victory to the states seeking to keep bans on same-sex marriage.

The Washington Post:

It became clear after three hours of arguments that the panel could become the first roadblock for proponents of same-sex marriage who have had an extraordinary winning streak in knocking down state restrictions following a landmark decision by the Supreme Court in 2013.

That 5 to 4 ruling struck down the part of the federal Defense of Marriage Act that defined marriage as only between a man and a woman.

But a panel of three randomly chosen judges of the U.S. Court of Appeals for the 6th Circuit left questions about whether it would follow the lead of two other appeals courts. Those courts said the reasoning of the Supreme Court’s decision meant that states lacked the right to limit marriage to opposite-sex couples and to deny recognition of unions conducted elsewhere.

Al Jazeera:

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.

The AP:

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.


Six Marriage Equality Cases at the Sixth Circuit Today: A Preview

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BY ARI EZRA WALDMAN

The Cincinnati-based Sixth Circuit Court of Appeals will hear oral arguments in a series of marriage equality cases today from the jurisdiction's four constituent states: Kentucky, Michigan, Ohio, and Tennessee. It is an unprecedented coming together of marriage equality litigation that has the potential to change the destiny of marriage in the federal courts for several reasons:

6thcircuitFirst, these cases cover the entire Sixth Circuit and any decision could affect all of them directly, even if a decision is stayed pending appeal to the Supreme Court. We have seen this happen in the Fourth Circuit, where the appellate court overturns a ban on marriage equality and other states in the circuit, North Carolina and West Virginia, either stop defending their own bans or take other pro-equality actions because they see the writing on the wall even though the decision is stayed pending appeal.

Second, the three-judge panel reflects the right-of-center tilt of the circuit, consisting of a Clinton appointee and two George W. Bush appointees, one of whom has made his fiercely conservative views public.

And, third, as the third federal appeals court to hear a post-Windsor marriage case -- after the Tenth (the Utah case) and the Fourth (the Virginia case), but before the Seventh (on August 26), the Ninth (on September 8), and at some point, the Fifth -- the Sixth Circuit is being watched to determine if a pattern is emerging among the circuits or if there will be a split among the panels.

AFTER THE JUMP, I summarize the cases and briefly profile the judges on the panel. I will also discuss a few things to watch for during the marthon oral argument, scheduled to being at 1 PM.

CONTINUED, AFTER THE JUMP...

Continue reading "Six Marriage Equality Cases at the Sixth Circuit Today: A Preview" »


Sixth Circuit Court of Appeals to Hear Six Marriage Equality Cases in One Day on August 6

The Sixth Circuit Court of Appeals is lining up the cases for a pretty impressive combo score on August 6th and will be hearing six discrete marriage equality cases from Kentucky, Michigan, Ohio, and Tennessee.

6thcircuitFrom the National Center for Lesbian Rights:

On August 6, the U.S. Court of Appeals for the Sixth Circuit will hear oral argument in six marriage equality cases--the most marriage cases that any federal circuit court has ever heard in a single day, and the fourth argument to be heard by a federal circuit court since the United States Supreme Court's decision last summer striking down the Defense of Marriage Act (DOMA).

Federal Judges Martha Craig Daughtrey, Jeffrey S. Sutton, and Deborah L. Cook will hear the challenges to laws banning marriage equality in Kentucky (two cases), Michigan, Ohio (two cases), and Tennessee. The National Center for Lesbian Rights is representing plaintiffs in Tennessee, American Civil Liberties Union is representing plaintiffs in Ohio, and Lambda Legal is representing plaintiffs in Ohio.

Oral arguments will begin at 1pm ET at the Potter Stewart Courthouse in Cincinnati, Ohio.


Federal Appeals Court to Hear Gay Marriage Challenges from MI, OH, KY, and TN on August 6

The Sixth Circuit Court of Appeals has scheduled hearings for five marriage cases in four states on August 6, the Washington Blade reports:

LmcIn four separate notices on Monday, the Sixth Circuit, which is located in Cincinnati, announced that arguments for the cases in Michigan, Ohio, Kentucky and Tennessee will take place on August 6 at 1 pm.

James Esseks, director of the American Civil Liberties Union LGBT project, said his organization welcomes the developments for each of the cases. His organization is assisting with litigation in the Ohio case.

“We’re happy to see the Circuit taking up this issue so quickly,” Esseks said. “All the cases together reinforce how sweeping and widespread are the harms that come from the marriage bans.”

Every case seeks same-sex marriage recognition rights of some sort, except the case from Michigan, which seeks to win the freedom for gay couples to marry in the state.

According to Equality on Trial:

Michigan: Arguments in DeBoer v. Snyder will be one hour, with 30 minutes per side.

Ohio: Arguments in Henry v. Himes and Obergefell v. Himes will be one hour, with 30 minutes per side.

Kentucky: Arguments in Bourke v. Beshear will be 30 minutes, 15 minutes per side.

Tennessee: Arguments in Tanco v. Haslam will be 30 minutes, 15 minutes per side.

In related news, DOMA attorney Roberta Kaplan had filed a motion to intervene in the Ohio case but she has been denied:

According to the eight-page notice handed down from the court, Kaplan was denied the ability to participate because the cases is too far advanced at this point.

The state of Ohio and the ACLU had objected to Kaplan's motion to intervene.


Tennessee Equality Project Looking for Gay Couples Willing to Marry the Moment it is Legal

The Tennessee Equality Project is putting out a call for gay couples who want to be married in the state the moment it becomes legal, The Tennessean reports:

TennesseeIt's an effort to prepare the state for a scenario like the one in Michigan, where same-sex marriage was legal parts of March 21 and 22 before the 6th Circuit Court of Appeals in Ohio issued a stay on a lower federal court's ruling. More than 300 same-sex couples wed in that time. A much more narrow Tennessee same-sex marriage case is pending before the same appeals court — three same-sex couples' marriages were recognized here for a little more than a month before the appeals court issued a stay.

...At 6 p.m. tonight at Out Central, 1709 Church St. in Nashville, the Tennessee Equality Project will be recruiting couples willing to marry here on short notice, executive director Chris Sanders said. Southerners for the Freedom to Marry will be seeking stories from both those couples and ones married in other states to share on blogs, videos, social media and elsewhere.


Tennessee Wedding Venue That Turned Away Iraqi War Veteran Couple Does About-Face on Gay Policy

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Yesterday we reported that Mint Springs Farm, a wedding venue in Tennessee, had turned away a gay Iraqi war veteran couple of nine years who were planning a commitment ceremony there.

Today comes word that the venue has changed its policy.

Via the Tennessee Equality Project:

"As owners of Mint Springs farm we have had time to regroup and reflect. We have reached out to the community and started a dialogue with Tennessee Equality Project. The Executive Director, Chris Sanders was able to meet with us. In order to move forward we have decided to change our policy. We will offer commitment ceremonies for any future couples that have a legal license from other states or countries. We also want to broaden this offer to include couples who simply want a commitment ceremony with no intention of obtaining legal marriage license. This will be our policy moving forward, it will remain true to all future prospective clients."


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