CINCINNATI — A federal appeals court began to hear arguments Wednesday in six gay marriage fights from four states — Kentucky, Michigan, Ohio and Tennessee — in the biggest such session on the issue so far, and hundreds of supporters rallied near the courthouse.
Three judges of the 6th U.S. Circuit Court of Appeals in Cincinnati considered arguments that pit states’ rights and traditional, conservative values against what plaintiffs’ attorneys say is a fundamental right to marry under the U.S. Constitution.
Michigan’s and Kentucky’s cases stem from rulings striking down each state’s gay marriage bans. Ohio’s case deals only with the state’s recognition of out-of-state gay marriages, while Tennessee’s is narrowly focused on the rights of three same-sex couples.
Michigan’s solicitor general, Aaron Lindstrom, opened the afternoon by saying that any change in the state’s ban on same-sex marriage should come through the political process.
“The most basic right we have as a people is to decide public policy questions on our own,” he said.
Fundamental constitutional rights shouldn’t be decided in popular votes, countered attorney Carole Stanyar, who represents the plaintiffs in a case that began when a lesbian couple sued over state law barring them from jointly adopting their children.
“The Michigan marriage amendment gutted the democratic process,” she said.
Attorneys on both sides in the Michigan and Ohio cases were to go first and get a half-hour each to make their cases. Kentucky and Tennessee will follow, with 15 minutes for each side from both states.
In nearby Fountain Square, advocates held up banners and signs urging freedom to marry or other messages in favor of the legal challenges to the bans. The crowd included couples who married in states where same-sex marriages are legal and other longtime couples who said they are waiting for it to become legal in their home states.
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 gay marriage opponents prayed the rosary outside the courthouse. Foes said they would pray for judges to uphold “traditional marriage.”
Since the U.S. Supreme Court struck down part of the federal Defense of Marriage Act last year, gay marriage advocates have won more than 20 victories in federal courts. No decision has gone the other way in that time.
Constitutional law professors and court observers say the 6th Circuit could deliver the first victory to gay marriage opponents.
The three judges hearing the case are Jeffrey S. Sutton and Deborah L. Cook, both nominees of President George W. Bush, and Martha Craig Daughtrey, a pick of President Bill Clinton.
Sutton is considered the least predictable, shocking Republicans in 2011 when he became the deciding vote in a 6th Circuit ruling that upheld President Barack Obama’s landmark health care overhaul.
If the 6th Circuit decides against gay marriage, that would create a divide among federal appeals courts and put pressure on the U.S. Supreme Court to settle the issue for good in its 2015 session. The appeals court is not expected to issue a ruling for some time.
Two federal appeals courts already have ruled in favor of gay marriage, one in Denver in June and another in Richmond, Virginia, last week. On Tuesday, Utah appealed the ruling from the Denver-based court, asking the U.S. Supreme Court to take up the case and uphold the state’s ban.
The 6th Circuit is the first of three federal appeals courts to hear arguments from multiple states in August and September.
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 set to take up bans in Idaho and Nevada on Sept. 8.
Gay marriage is legal in 19 states and the District of Columbia.
