A federal appeals court will hear arguments in gay marriage fights in Ohio, Michigan, Kentucky and Tennessee in a single session, setting the stage for historic rulings in each state.
The 6th U.S. Circuit Court of Appeals, based in Cincinnati, scheduled arguments in five cases from the four states for Aug. 6. Though the cases are unique, each deals with whether statewide gay marriage bans violate the U.S. Constitution.
“I think the way the court’s approaching it is significant,” said Al Gerhardstein, a Cincinnati civil rights attorney who represents plaintiffs in two Ohio cases that will go before the appeals court. “They see the need to do some basic rulings on core principles cutting across all these state lines. It’s very exciting.”
Louisville attorney Dawn Elliott, who represents eight plaintiffs in the Kentucky case, said she and her co-counsel plan to make their arguments personal, focusing on the people affected by the ruling.
“Our plaintiffs are all planning on being there, because it’s harder to say no to somebody when you’re looking at them, to say, `No your marriage is not valid because you’re gay,'” said Elliott’s co-counsel, Shannon Fauver.
The 6th Circuit is the third federal appeals court to weigh recent challenges to state gay marriage bans, though the first to consider cases in so many states at the same time. Arguments were held in the 4th Circuit in Virginia concerning one case in May and the 10th Circuit in Denver concerning two cases in April. Rulings are expected soon.
In Cincinnati, a three-judge panel will hear arguments in each case one at a time. It’s unclear whether it will issue a large ruling encompassing all the cases or separate ones. Any losing side could appeal to the U.S. Supreme Court.
More than a dozen federal and state judges have struck down part or all of state-level bans in recent months. No rulings have gone the other way.
The 6th Circuit’s decision to consolidate the cases is unusual but not unprecedented, said Carl Tobias, a professor of constitutional law at the University of Richmond.
He pointed to the U.S. Supreme Court’s decision in Brown v. Board of Education, which consolidated five segregation cases, and rulings on other issues including abortion.
Although there has been a wave of rulings in favor of gay marriage across the country, Tobias said that doesn’t mean the circuit courts will uphold them.
“Appellate judges are a little more distant and different than individual district judges and they’re more willing to go against the tide,” he said.
The five cases being considered by the Cincinnati appeals court are:
• An order for Ohio to recognize all out-of-state gay marriages, currently on hold, and a narrower case that forced Ohio to recognize same-sex marriages on death certificates.
• A ruling that Kentucky recognize out-of-state gay marriages, saying a statewide ban violated the Constitution’s equal-protection clause by treating “gay and lesbian persons differently in a way that demeans them.”
• An order overturning Michigan’s statewide gay marriage ban, which followed a rare trial that focused mostly on the impact of same-sex parenting on children. More than 300 couples were married on a Saturday in March before the ruling was suspended pending appeal.
• An order for Tennessee to recognize three same-sex marriages while a lawsuit against the state works through the courts. Tennessee officials are appealing the preliminary injunction to the 6th Circuit.
Ohio’s attorney general has said the state’s voters have decided in 2004 that marriage is between a man and a woman and that he’ll continue to defend the ban.
Michigan Gov. Rick Snyder has said his state won’t recognize the 300 marriages performed in March because the ban is still the law.
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.
Kentucky Gov. Steve Beshear hired private attorneys to appeal his state’s decision after the 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.”