Typical of the recent drama was the scene last Wednesday in Cincinnati, Ohio, when hundreds of engaged citizens gathered outside the U.S. Court of Appeals for the Sixth Circuit as same-sex marriage bans faced yet another test in federal court.
A three-judge panel consisting of two Republican appointees and one Democratic appointee—mirroring the ideological divide on the full Sixth Circuit bench—heard oral arguments on Wednesday in six cases across four states.
Lawsuits from Kentucky and Michigan ask the court to rule on whether the Constitution allows the states to ban same-sex marriage. Challenges from Ohio and Tennessee, on the other hand, ask whether the Constitution requires states to recognize same-sex marriages performed in other states where the practice is legal.
Judge Martha Craig Daughtrey made no bones about where she stood on the matter, making repeated reference to previous civil rights battles and drawing an analogy between the current cases and Loving v. Virginia (1967), in which the Supreme Court ruled bans on interracial marriages unconstitutional.
When Ohio Solicitor General Eric Murphy suggested gay rights activists would be better served by seeking change at the ballot box, calling “a victory that comes through the political process” the “truer victory,” the judge would have none of it, according to the Cincinnati Enquirer.
"If I told you it took 78 years crossing the desert back and forth and back and forth, would you be surprised?" Daughtrey asked, referring to efforts to achieve the right to vote for all women. "The point is you want to do this state by state … and that doesn't always work,” she said, adding, “I just thought you might want to know that in case you're ever on Jeopardy."
For her part, Judge Deborah L. Cook made few remarks throughout the proceedings but “seemed inclined to side with the states,” the Washington Post reports. She noted that legally married same-sex couples know full well if a state recognizes their relationship when they move there. Cook also expressed concern about undermining voters who approved the state bans.
All eyes, then, fell on Judge Jeffrey S. Sutton, who appeared genuinely divided on the questions at hand.
On the one hand, Sutton expressed skepticism of procreation as a reasonable justification for same-sex marriage bans, saying “love, affection and commitment” were the heart of modern marriages.
On the other hand, he seemed sympathetic to opponents who point to the will of the voters. “Changing hearts and minds happens much more effectively through the Democratic process than through the courts,” he said.
But with same-sex marriage now legal in 19 states and the District of Columbia, Sutton saw the writing on the wall. “The trajectory favors the plaintiffs,” he said bluntly.
A new report by the Alliance for Justice details that striking trend, noting that every state with a same-sex marriage ban faces a challenge in state or federal court.
Indeed, the Supreme Court has already been asked to review cases from Utah and Oklahoma in which the U.S. Court of Appeals for the Tenth Circuit struck down bans in those states. On Friday, Virginia state officials filed a petition with the high court as well.
Lyle Denniston, the National Constitution Center’s adviser on constitutional literacy and a correspondent for SCOTUSblog, says “the clues add up” to a ruling very soon, likely in the next term.
“But predicting how the court will react is fraught with uncertainty,” he noted. “Because the Justices have such wide discretion, they need not step into this controversy yet, and they do not even have to explain it if they just let it develop further for a time.
“Even so,” said Denniston, “they, too, recognize the signals that they have been sending.”
Nicandro Iannacci is a web strategist at the National Constitution Center.
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