If the issue of same-sex marriage is on an expressway to the Supreme Court, Wednesday was rush hour in a federal appeals court here.
In an unprecedented and marathon hearing, tag teams of attorneys for four states told an appellate panel why voter-approved prohibitions in Kentucky, Michigan, Ohio and Tennessee should be honored.
All the while, plaintiffs and their families filled row after row of a huge, ornate courtroom, arms around one another, occasionally shushing babies and listening for their names to be mentioned.
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.
Appeals Court Judge Jeffrey S. Sutton repeatedly asked attorneys representing the same-sex couples why they didn’t think it better to win marriage rights systematically through the democratic process, capturing the “hearts and minds” of their fellow citizens instead of “five votes of the Supreme Court.”
Because overturning state constitutional amendments is difficult, time-consuming and expensive, they answered. And Alphonse A. Gerhardstein, representing same-sex couples married elsewhere who want Ohio to recognize their unions, said it is wrong to make a fundamental right dependent upon popular approval.
Such rights should not be subject to popular vote, Gerhardstein said.
His clients, he said, have children who can have only one of their parents officially recognized. “They deserve two parents,” he said. “They deserve them now.”
A more conservative panel
A loss might not be the worst thing for proponents of same-sex marriage, who are eager to get the issue to the high court. Even in those states where courts have struck down bans, Supreme Court justices have blocked marriages until the appeals courts or the high court itself decides the issue.
Although the justices in 2013 ruled 5 to 4 in U.S. v. Windsor that the federal government could not refuse to recognize same-sex marriages performed in those states where it is legal, the court did not decide whether states, the traditional guardian of marriage laws, may ban such unions.
Although two appeals courts have ruled that bans in Oklahoma, Utah and Virginia violate the federal Constitution, the Supreme Court is under no obligation to review those decisions.
But if there is a split among the appeals courts on whether marriage is a fundamental right that must be offered to all or, alternatively, that states are free to restrict it to heterosexual couples, that would almost surely require Supreme Court intervention sooner rather than later.
Source: Washington Post
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