Created on Wednesday, 06 August 2014 Written by AMANDA LEE MYERS, Associated Press
CINCINNATI (AP) — A federal appeals court was set 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.
Color guard and members of the Cincinnati Chapter of Scouts for Equality march through the crowd for the National Anthem at a rally led by the group Why Marriage Matters Ohio in support of gay marriage in Lytle Park, Tuesday, Aug. 5, 2014 in Cincinnati. Federal appeals courts soon will hear arguments in gay marriage fights from nine states, part of a slew of cases putting pressure on the U.S. Supreme Court to issue a final verdict. (AP Photo/The Cincinnati Enquirer, Jeff Swinger)
Three judges of the 6th U.S. Circuit Court of Appeals in Cincinnati will consider 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. Large demonstrations are expected outside the courthouse by both opponents and supporters.
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.
Attorneys on both sides in the Michigan and Ohio cases will 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.
A handful of people were at the courthouse Wednesday before it opened to reserve a seat in an overflow room for the hearing, including Frank Colasonti Jr., 61, of Birmingham, Michigan, who said he camped outside the building overnight.
Colasonti said he and his partner of 26 years married this year in Michigan, before a court order halted marriages pending the state's appeal.
"It's very important to show that we are like other people," said Colasonti, who shared a pillow during the night with a woman who was also among the first to get a ticket. "We wanted to show that our love is no different than what heterosexual couples share."
Wyatt Fore, of Ann Arbor, Michigan, was at the courthouse at 6 a.m.
"I've always been jealous of my parents, who got to see the civil rights movement firsthand," said the 27-year-old law student at the University of Michigan. "Now, I get to be a part of history."
Fore, who is gay and single, said the marriage issue is about more than just specific rights and benefits.
"It's about equal rights in our society," he said
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.
Archbishop Dennis Schnurr urged Roman Catholics in the 19-county Cincinnati archdiocese to pray that the appeals court would uphold Ohio's 2004 ban on same-sex marriage in support of "traditional marriage" of "one man and one woman for life."
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.
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.
Associated Press writer Lisa Cornwell contributed to this report.
Summary of gay marriage cases before appeals court
The Associated Press
The Cincinnati-based 6th U.S. Circuit Court of Appeals will hear arguments in six gay marriage fights from Ohio, Michigan, Kentucky and Tennessee on Wednesday, setting the stage for one ruling. Each case deals with whether statewide gay marriage bans violate the Constitution. A look at the cases:
Kentucky has two cases, including a lawsuit filed by three couples last year seeking to have their marriages recognized by the state.
In July, a federal judge agreed with the couples, striking down the state's ban on recognizing out-of-state marriages. That ruling is on hold pending appeal.
One couple, Greg Bourke and Michael DeLeon, said that if they win, their first move will be to get Bourke listed as the legal parent of their two children. Kentucky recognizes only DeLeon as their parent, since the couple's 2004 marriage in Canada is not valid in the state.
Bourke said the couple endured legal wrangling and attorney expenses just to "mimic a marital relationship."
In the other case, the same judge also struck down Kentucky's ban on issuing marriage licenses to same-sex couples. That ruling also is on hold.
Kentucky Gov. Steve Beshear hired private attorneys to appeal his state's decision after Attorney General Jack Conway called a tearful news conference to announce he would not appeal the ruling, saying that doing so would be "defending discrimination."
Michigan's gay marriage fight began when a lesbian couple sued to change a state law that bars them from jointly adopting their three children.
Though the case was narrowly focused at first, it changed significantly when a judge noted that the joint adopting ban was related to Michigan's bans on gay marriage. So the couple, Jayne Rowse and April DeBoer, of suburban Detroit, expanded their lawsuit, and both gay marriage bans were struck down in March.
"It's still about our kids," DeBoer said of the couple's 4-year-old girl and 5-year-old boy. "We went forward with fighting the marriage ban because it's the only way to protect our kids."
Rowse and DeBoer are waiting to marry until the legal process ends, though more than 300 gay and lesbian Michigan couples were wed before the appeals court ordered a stay.
Gov. Rick Snyder has said Michigan won't recognize those marriages because the ban is still the law. But U.S. Attorney General Eric Holder extended those couples federal recognition, saying the families should not be asked to endure uncertainty regarding their benefits.
Ohio's two cases involve rights for gay and lesbian couples at the beginning of life and at the end. One case involves two gay men whose spouses were dying. They sued to win the right to be listed as the surviving spouses on their husbands' death certificates and for their spouses to be listed as having been married.
A federal judge ruled in their favor, though one of the surviving spouses, Jim Obergefell, said that he's afraid the 6th Circuit will overturn the ruling and that Ohio will change the death certificate to list his husband, John Arthur, as single.
"It scares the daylights out of me to think that the state could come back and wipe that off John's death certificate," Obergefell said. "The last legal record of his life would be wrong, and it'd be a slap in the face."
Ohio's attorney general has said the state's voters decided in 2004 that marriage is between a man and a woman and that he'll continue to defend the ban.
In a separate lawsuit, three lesbian couples in Ohio and one gay couple living in New York sued to have both spouses listed on their children's birth certificates. One woman in each Ohio couple was pregnant and gave birth this summer, while the New York couple adopted an Ohio child.
In a ruling, Ohio was ordered to list both spouses of each couple on their children's birth certificates. The judge also issued a broader ruling in the case, ordering Ohio to recognize all gay marriages performed legally in other states. That's on hold pending appeal.
Tennessee's case only applies to the marriages of three same-sex couples who sued to be recognized on their children's birth certificates.
The couples say they want their children to have the same protections as children of heterosexual couples.
"It means that we don't need to worry about things that are taken for granted by families that are not of the same sex, such as parental rights," said plaintiff Valeria Tanco, the mother of 4-month-old Emilia. She said she worries about her daughter if something were to happen to Tanco herself, the girl's birth mother.
"You don't really have to think about that when you're married in a straight couple relationship," Tanco said.
In March, a federal judge in Tennessee issued an injunction against the state from enforcing the gay marriage ban against the three couples.
A spokesman for Tennessee Gov. Bill Haslam has said the governor was disappointed in the ruling, saying the state's voters passed a statewide ban in 2006.
The lawsuit does not challenge laws barring same-sex marriage in Tennessee, only those that prohibit recognizing such marriages performed in other states.
Associated Press writers Amanda Lee Myers in Cincinnati, Ed White in Detroit, Lucas L. Johnson II in Nashville, Tennessee, and Dylan Lovan in Louisville, Kentucky, contributed to this report.