CINCINNATI, Ohio (DETROIT FREE PRESS) — In a blockbuster gay marriage trial in Cincinnati, one federal judge suggested leaving it up to voters in each state to decide if same-sex marriages should be allowed.
Another judge scoffed at that idea, noting it took 78 years for women to win the right to vote because the democratic process was too slow.
A third judge mostly kept silent.
After three hours of oral arguments in cases involving Michigan, Ohio, Tennessee and Kentucky, the 6th Circuit U.S. Court of Appeals gave no clear indication today as to how it would vote on the highly contentious issue of same-sex marriage. The court is in a delicate balancing act, weighing the rights of individuals to marry who they please against a state's right to regulate itself and decide what the definition of marriage is.
The court also has this to consider: marriage-equality advocates have won 29 consecutive same-sex marriage cases across the country since December. Plus, two other circuits have struck down same-sex marriage bans.
Whether the 6th Circuit follows suit remains uncertain. If it breaks the trend, there will be a split in the federal appellate courts, making it more likely for the U.S. Supreme Court to take up the issue, with Michigan's case being a hot contender.
Ohio State University constitutional law professor Marc Spindelman said that no matter what the 6th Circuit decides about same-sex marriage, the issue will eventually wind up before the U.S. Supreme Court.
Should the 6th Circuit buck the trend, he said, that will "sharpen the urgency" for the Supreme Court to hear one of these cases. But either way, he said, "the court will eventually hear and decide one of these cases."
Meanwhile, hundreds of people flooded downtown Cincinnati to witness the historic arguments, rally outside the courthouse or protest. Surprisingly, though, while gay marriage has sparked a huge outcry from churches and religious organizations, there were few protesters outside the federal courthouse. There was one priest, and he supported gay marriage. One Ohio pastor prayed the bans on same-sex marriage would stick. About a half-dozen protesters joined him.
Inside the courthouse, 150-plus people packed a courtroom to hear arguments in six cases from four states.
Michigan Solicitor General Aaron Lindstrom was the first one up. He urged the 6th Circuit to uphold the will of voters, saying they already have spoken on the issue of same-sex marriage — they banned it in 2004 — and that their voices should not be drowned out by the courts.
"This case is about who gets to decide what the definition of marriage should be," Lindstrom said during his 30-minute argument, arguing the democratic process is best suited to handle the issue of legalizing gay marriage. "If there's going to be change in this area, it's not going to be through the courts, but through the people."
Lindstrom also argued that "it's too early to tell" if same-sex parenting works and that "it's rational to wait and see."
Not for attorney Carole Stanyar, who is representing two Hazel Park nurses seeking to overturn Michigan's gay-marriage ban so they can get married and adopt each other's special-needs children. A federal judge ruled in their favor in February following a nine-day trial. The state appealed.
Stanyar told the court that marriage equality is long overdue in this country, and individuals like her clients shouldn't have to wait any longer to marry whom they love.
"April DeBoer and Jayne Rowse have a constitutional right to share a life, to marry, to form a family and to raise children," Stanyar said in court, arguing that Michigan's ban unlawfully strips them of that right. " … Michigan's laws are pervasively discriminatory to same-sex couples. … these bans humiliate children They devalue same-sex couples."
Change, Stanyar argued, is long overdue.
"Over the course of history, we have lost our footing and our humanity," Stanyar said. "We know better now. There's no reason to treat people this way."
During her 30-minute argument, 6th Circuit Judge Jeffrey Sutton interrupted Stanyar more than 30 times with questions, repeatedly asking her why she doesn't let the voters handle the same-sex marriage issue instead of the courts. He said if this case is about getting "respect and dignity" for same-sex couples, then why not let the actual public weigh in, rather than the courts.
"I would think that the best way to get respect and dignity is through the democratic process," Sutton said, adding that "if the goal is to change hearts and minds," convincing the public, rather than the courts, would seem the way to go.
Sutton later asked her about waiting it out to see what happens in other states, noting same-sex marriage already has been legalized in more than 20 states.
Stanyar said the "wait and see approach" won't work for Michigan, Ohio, Kentucky or Tennessee.
"In my state, nothing is happening to help gay people," Stanyar said.
But state attorneys for Michigan and Ohio argued the bans on same-sex marriage are not about discriminating against anyone, nor is there any animus behind the bans. Rather, they argued, the states have a rational basis for wanting to protect traditional marriage – among the reasons being to protect procreation and foster the idea that children thrive best when raised by married moms and dads.
That concept is not irrational, the states argued, and neither are the millions of voters who want to preserve traditional marriage.
"The fundamental question in all of these cases is … who should make these important decisions," said Ohio attorney Eric Murphy, who argued that voters in each state should have the final say on same-sex marriage.
But 6th Circuit Judge Martha Daughtrey questioned that philosophy, noting the democratic process doesn't always work. She asked Murphy if he knew how many years it took for women to win the right to vote.
Murphy said he didn't know.
Daughtrey told him it was 78 years, and that was after women had gone state to state, trying to convince legislators to pass laws to let them vote.
"It didn't work," Daughtrey said, noting it took a constitutional amendment to win women the right to vote. "You're not getting the point. You want to do this state by state … and it just doesn't always work."
Daughtrey is the lone liberal on the three-judge panel hearing the same sex-marriage cases. During Michigan's oral arguments, she brought up the landmark 1967 case Loving v. Virginia, which legalized interracial marriages, and asked how the issue of same-sex marriage is different.
The state said same-sex marriage is different than racial discrimination, and that voters aren't intending to discriminate against anyone, but rather to protect a definition of marriage that has been in place for centuries.
Daughtrey also brought up the winning streak that marriage equality advocates are on. Since the U.S. Supreme Court struck down parts of the Defense of Marriage Act, which denied federal benefits to same-sex couples, marriage equality advocates have won 29 cases in a row.
"What's happened around the country is pretty clear," Daughtrey said.
Daughtrey also cited the Michigan trial, noting that "there was a lot of evidence" that showed the effects of same-sex parenting on child outcomes "were benign" and that the state's claims that children raised by moms and dads fared better had no merit. She noted that one of the state's experts — a University of Texas sociologist — got blasted by his own university, which, she said, posted on its website: "Don't believe anything this man says."
The courtroom of 150-plus spectators erupted in laughter.
Sixth Circuit Judge Deborah Cook, a conservative whose nomination was strongly opposed by civil rights groups, said little during the arguments. She asked a few questions about whether there were any other state benefits — other than protecting procreation — in denying same-sex marriage.
For Michigan, Lindstrom said, preserving traditional marriage is also about advocating the belief that children are best off being raised by married moms and dads. It's not irrational to think that or advocate that, the state has argued.
Plus, Lidstrom said, there could be future, unseen harms to children or families if same-sex marriage is legalized right now.
Daughtrey quipped: "Do you honestly think that that's what's happening in the states (that have legalized gay marriage?)"
Lidstrom responded: "It's too early too tell."
Hogwash, said Stanyar, arguing: "No other group in society has to pass a parenting competency test to get married."