On August 6 a three-judge panel of the Cincinnati-based U.S. Court of Appeals for the 6th Circuit held a marathon three-hour argument for appeals in six marriage equality decisions coming from all four states in the circuit: Ohio, Michigan, Kentucky and Tennessee. Eight attorneys — four representing the states and four representing groups of same-sex couple plaintiffs — struggled with defining fundamental rights, parsing state justifications for excluding same-sex couples from marriage, figuring out whether the court was bound to rule for the states under the Supreme Court’s 1972 Baker v. Nelson decision, and considering the practical consequences of a ruling for the plaintiffs. The arguments were held in the shadow of recent decisions by two other circuit courts of appeals in favor of plaintiffs, as well as more than twenty consecutive rulings by federal and state trial judges all favoring marriage equality.
Despite the recent litigation history, the attorneys for the states seemed confident and undeterred, pushing forward with their arguments on two fronts. All four states argued that the central question in the case was whether it was the state government and people or the federal court that should make the policy decision about same-sex marriage, and they all ended up relying heavily on the part of Justice Anthony Kennedy’s opinion for the Supreme Court in U.S. v. Windsor that focused on the traditional role of states in defining marriage. Kennedy emphasized that Congress had departed from that history by passing a rule that certain marriages would not be recognized by the federal government, even though a state had decided to authorize them. This unusual departure from past practice of generally recognizing state-authorized marriages led the Court to question the reasons behind the Defense of Marriage Act, and to conclude that it was motivated by animus against gay people.
The states argued that, by contrast, there was no animus involved in their electorates having passed constitutional amendments forbidding same-sex marriages, because all those amendments did was to preserve the status quo. Gay people in those states had no fewer rights after the amendments were passed than they had before the amendments were passed.
By contrast, the attorneys arguing for same-sex couples generally avoided arguing that the marriage exclusion was motivated by animus, instead focusing on the lack of rational justification for them, interspersed with arguments about the harms caused to same-sex couples by the refusal of the state to let them marry or recognize their out-of-state marriages, and the logical disconnect between the procreation theories advanced by the states and the exclusionary effects of their marriage bans.
Of the three judges on the panel, two seemed very actively engaged in trading questions and comments with the lawyers, while one seemed more like an observer. Judge Deborah Cook, appointed to the court by George W. Bush and known as a “doctrinaire conservative” according to at least one press account, asked few questions and made few comments, and her few words did not suggest a strong disposition about the outcome of the case. To the extent she was skeptical, her skepticism seemed directed at lawyers from both sides. Unlike the judges who went on to dissent in the 4th and 10th Circuit cases, however, she did not take an active role in rebutting the arguments of plaintiffs’ lawyers, confining herself to a handful of questions that did not reveal any particular predisposition. It was very hard to read her reactions from the audio recording of the arguments.
Judge Martha Craig Daughtrey, appointed to the court by Bill Clinton, appeared strongly predisposed to affirm the lower court marriage equality rulings that were being appealed by the states. She asked many questions, and seemed most skeptical of the states’ procreation arguments, asking again and again how excluding same-sex couples from marriage would advance the states’ asserted interest in channeling procreation into marriage. Responding to the argument that gay people should resort to the political process on a state-by-state basis, she raised the counterexample of the campaign for women’s right to vote, which stretched over 78 years and eventually had to go national with a quest for a federal constitutional amendment because there was so little success in winning the vote from state legislatures.
The activist on the panel, in terms of controlling the flow of the argument and asking frequent questions, was Jeffrey Sutton, also appointed to the court by George W. Bush and also generally considered to be very conservative. According to press accounts, he is a strong supporter of states’ rights and of reigning in the federal government. But he surprised many observers when he wrote an opinion for the 6th Circuit rejecting a constitutional challenge to the Affordable Care Act (a/k/a Obamacare), and press speculation about the marriage equality cases has suggested that he is the swing voter here.
Certainly, listening to his questions and comments, one could conclude that he was sympathetic to the case being made for the same-sex couples. At the same time, the theme to which he recurred again and again was the idea of “pacing.” That is, he felt that this was an issue as to which different states might proceed through their democratic processes at different speeds, and in the federal system where the defining of marriage has traditionally been a state function, that could be permissible. He posed to several of the plaintiffs’ lawyers the question whether it was really preferable for the gay community to achieve marriage through the courts as opposed to the democratic process, pointing to the successful marriage equality referenda in several states in 2012 and the enactment of marriage equality laws through the legislatures in a majority of the states that now have marriage equality. He referred to “winning the hearts and minds” of the public as a preferable way to achieve policy change in a democracy. One had the sense, listening to him, that he was not opposed to the idea of same-sex marriage, but that he was sympathetic to the argument by the states that they should be allowed to move along on this issue at their own pace.
The Michigan and Kentucky cases involved both the right of same-sex couples to marry within the states and the right to have out-of-state marriages recognized, while the Ohio and Tennessee cases dealt only with recognition of out-of-state marriages. There was some discussion about whether it would be possible to rule in favor of the recognition claims without deciding the underlying right-to-marry question, and Judge Sutton raised on his own, as none of the parties had raised, the question whether Section 2 of DOMA, which says that no state would be required to give full faith and credit to same-sex marriages performed in other states, was relevant to these cases. And, indeed, the Windsor DOMA decision from 2013 bears more directly on the question of marriage recognition, since the Supreme Court held in that case that there was no legitimate justification for Congress to refuse to recognize marriages that states had authorized to take place. It was possible to think, after hearing these arguments, that the court might rule for plaintiffs on the recognition claims while holding back on the right-to-marry claims, although one of the state lawyers pointed out the position in which this would put the states, creating marriage evasion problems.
Sutton posed to several lawyers the question whether there would be significant practical difficulties in implementing marriage equality rulings, but the state lawyers were unable to think of many, and the attorney for the Ohio couples pointed out that a simple definition statute substituting gender-neutral terms throughout the state code would take care of the problem.
The lawyers for the plaintiffs did an excellent job explaining why state bans on same-sex marriage were no longer constitutional in light of the Supreme Court’s decisions in Romer, Lawrence, and Windsor. And the lawyers for the states seemed to be grasping at straws in their attempts to persuade the court that Baker v. Nelson, the 1972 statement by the Supreme Court that the issue of same-sex marriage did not involve a “substantial federal question,” was still binding on lower federal courts, including the 6th Circuit Court of Appeals. When Baker was raised briefly during the DOMA and California Prop 8 Supreme Court arguments in 2013, Justice Ruth Bader Ginsburg quickly dismissed it as no longer relevant, but the Court did not speak about Baker in either decision. Since Windsor, every lower court that has ruled in a marriage equality case has agreed that Baker is no longer relevant. In light of Windsor, it is hardly credible to suggest that marriage equality does not present substantial federal constitutional issues.
Lawyers arguing for the same-sex couples were Carole Stanyar of Michigan, Alphonse Gerhardstein of Ohio, Laura Landenwich of Kentucky, and William Harbison of Tennessee. Lawyers arguing for the states were Michigan Solicitor General Aaron Lindstrom, Ohio Solicitor General Eric Murphy, Leigh Gross Latherow of Kentucky, and Tennessee Acting Solicitor General Joe Whalen. In this listener’s estimation, the most effective arguments were made for the plaintiffs, although none of the states’ advocates could be dismissed as ineffective. The arguments were conducted on a high level, and at least Judges Sutton and Daughtrey seemed very engaged. Sutton particularly complimented William Harbison from Tennessee on his argument.
At the conclusion of the last argument, Judge Sutton acknowledged that the 6th Circuit was not the final stop for these cases, and he commented that they hoped to get an opinion out quickly. He clearly recognized that the sooner the court issues its decision, the more likely it will be included among the cases jockeying for position at the Supreme Court as the one selected to make the ultimate determination. There was at least an intimation that the court expects to produce one decision covering all six cases up for review rather than separate decisions for each state, as Sutton responded to an argument by Ohio’s Eric Murphy about standing issues in one of the cases with the comment that it was not all that significant since it was clear that there were no standing problems in the other marriage recognition cases before the court, so a decision would emanate that would cover the entire circuit.