The U.S. 6th District Court of Appeals in Cincinnati, Ohio has become a battleground over the issue of same-sex marriage as four states brought their cases before the court. Three randomly chosen judges questioned both prosecution and defense on Wednesday as a packed house listened to the proceedings. In all four cases, bans on same-sex marriage are in question leaving the court with this decision: support marriage bans or go along with the apparent tide of change? Marriage bans have been struck down all over the country and this Ohio court is seen as the next step for many gay rights activists. Large rallies in favor of gay marriage were held on Tuesday night before the court went in session and smaller traditional marriage protests were also held as the issue heated up the court.
The three judges chosen to hear the cases are an interesting lot. Two are Bush appointees and generally conservative, while the third is a Clinton appointee. Judge Martha Craig Daughtrey seemed firmly on the side of overturning the bans, a positive sign for the same-sex couples who were present in the courtroom. Judge Deborah L. Cook was harder to read, but the assumption of many is that she will vote against same-sex marriage, leaving the other conservative on the bench, Judge Jeffrey S. Sutton as the swing vote. Sutton seemed well positioned as a swing vote, questioning both sides of the issue quite thoroughly. It was impossible to tell from his questions, however, whether he would be for or against same-sex marriage.
These three judges are hearing cases from four different American states. Michigan, Ohio, Kentucky, and Tennessee were all represented and their lawyers defended the states’ bans on same-sex marriage. Kentucky, however, was not represented by its attorney general. Jack Conway refused to participate, saying that it would require him to defend discriminatory practices. His stand on principle meant that he was not present and that Kentucky’s governor had to hire outside council. Kentucky was the only state to do so.
The cases from the four states have some similar lines of thinking on same-sex marriage which they brought to the battleground of the Cincinnati court. The challenges in Kentucky and Ohio both argue that the bans are discriminatory against same-sex couples. The responses to these arguments are also quite similar as both states’ lawyers argued that the laws could not be discriminatory because no rights for same-sex marriage exist. Judge Sutton did ask whether it was better to have the issue decided by popular vote, which could be taken as a sign that he was leaning towards upholding the marriage bans. However, he also commented that the states’ defense cases were weak, leaving hope for same-sex marriage advocates about the outcome of his vote.
The arguments from Michigan provided an answer to Sutton’s question about voting on the issue. Plaintiffs of the Michigan cases argued that fundamental human rights are not a matter for a vote. The Constitution protects human rights against majority opinion in order to prevent the oppression of minority groups. In this case, same-sex couples suing for the right to marry would be considered a minority group. The reply from Michigan’s defense was that deciding this kind of public policy by voting was a basic civil right. Thus, Michigan wants a public vote on the issue rather than a court decision deciding the issue of same-sex marriage.
While the court argued and questioned these cases, spectators overflowed the allotted spaces for observation. Some were set up in audio-only rooms to listen to the course of the discussion. Next to the courthouse, 500 or more supporters of same-sex marriage gathered during the course of the day. They emphasized their commitments to each other and what they see as the inevitable tide of progress towards complete legalization of same-sex marriage. At the same time, smaller groups of people against same-sex marriage also gathered, some using prayer as a form of protest. Despite their relatively few numbers, they felt as though they represented the majority view on the issue and that gave them resolve.
Hope and tempers may run high during these cases, but the outcome will probably only be a moral victory for either side. There are many who consider this hearing as an audition for the highest court in the land. No matter what side wins, there will probably be an appeal, meaning the next step is the Supreme Court. While the outcome of this particular case depends on the vote of just one judge, in the end it could all be a moot point. In the meantime this Cincinnati court is the foremost battleground for the same-sex marriage issue and will be watched eagerly by all sides.
By Lydia Bradbury