Judges weigh 4 states’ same-sex marriage cases

CINCINNATI (AP) – Three federal judges weighing arguments in a landmark gay marriage hearing Wednesday peppered attorneys on both sides with tough questions, with one judge expressing deep skepticism about whether courts are the ideal setting for major social change and another saying the democratic process can be too slow.

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Gay marriage supporters rally on Fountain Square, Wednesday, Aug. 6, 2014, in Cincinnati. Three judges of the 6th U.S. Circuit Court of Appeals in Cincinnati are set to hear arguments Wednesday in six gay marriage fights from four states, Kentucky, Michigan, Ohio and Tennessee. (AP Photo/Al Behrman)

The judges in the 6th U.S. Circuit Court of Appeals considered arguments in six cases from Michigan, Ohio, Kentucky and Tennessee, setting the stage for historic rulings in each state that would put more pressure on the U.S. Supreme Court to decide the issue once and for all. Wednesday’s hearing was the biggest so far on the issue.

The cases pit states’ rights and traditional, conservative values against what plaintiffs’ attorneys say is a fundamental right to marry under the U.S. Constitution.

While questions and comments from two of the judges all but gave away how they’ll rule, one in favor of gay marriage and one opposed, Judge Jeffrey S. Sutton vigorously challenged some of each side’s assertions.

Sutton repeatedly questioned attorneys for the same-sex couples whether the courts are the best place to legalize gay marriage, saying that the way to win Americans’ hearts and minds is to wait until they’re ready to vote for it.

“I would have thought the best way to get respect and dignity is through the democratic process,” said Sutton, a George W. Bush nominee. “Nothing happens as quickly as we’d like it.”

Judge Martha Craig Daughtrey, a Bill Clinton nominee, said that historically, courts have had to intervene when individual constitutional rights are being violated, such as overturning state laws against interracial marriage and giving women the right to vote, pointing out that the latter took decades.

“Do you have any knowledge of how many years I’m talking about, going into every state, every city, every state board of elections, for 70 years?” she said. “It didn’t work. It took an amendment to the Constitution.”

Besides, gay marriage already is legal in more than a quarter of the states, and “it doesn’t look like the sky has fallen in,” Daughtrey said.

Constitutional law professors and court observers say that the 6th Circuit could be the first to uphold statewide bans on gay marriage following an unbroken string of more than 20 rulings in the past eight months that have gone the other way.

They point to Sutton, the least predictable judge on the panel. In 2011, he shocked Republicans and may have derailed his own chances to advance to the U.S. Supreme Court when he became the deciding vote in a ruling that upheld President Barack Obama’s health care law.

If the 6th Circuit decides against gay marriage, it would create a divide among federal appellate courts and put pressure on the U.S. Supreme Court to settle the issue in its 2015 session. The panel did not indicate when it would rule.

Attorneys for each state defended their marriage bans, arguing that any change should come from voters and that same-sex marriage is too new to be considered a deeply rooted, fundamental right.

“The most basic right we have as a people is to decide public policy questions on our own,” said Michigan’s solicitor general, Aaron Lindstrom.

Leigh Latherow, hired by Kentucky Gov. Steve Beshear, told the judges that the state has an economic interest in encouraging heterosexual marriage, which can lead to procreation. And Tennessee Associate Solicitor Joseph Whalen said Tennessee’s law barring recognition of out-of-state gay marriages ensures children are born into a stable family environment.

Attorneys for the same-sex couples said marriage is fundamental for everyone and should not be decided by popular votes.

“These rights are very, very profound,” said Al Gerhardstein, a Cincinnati civil rights attorney representing the Ohio plaintiffs. “A marriage is a significant thing. It’s solemn. It’s precious. This can’t be just subjected to a vote.”

Carole Stanyar, who represents the same-sex Michigan plaintiffs, bemoaned the often slow pace of the democratic process and said she doesn’t see such a change coming to her state any time soon.

“In my state, nothing is happening to help gay people,” she said.

Outside the courthouse, advocates held up banners and signs urging marriage equality. Jon Bradford, 26, of Covington, Kentucky, wore a wedding dress, and his partner, Matt Morris, wore a top hat and formal shirt.

“It’s to make a statement, really,” Bradford said. “We want to be married.”

He said they were hopeful the court will rule in favor of same-sex marriage.

“One day, it’s going to happen,” he said. “You can’t stop love.”

About a dozen opponents prayed the rosary outside the courthouse.

“I’m just praying for God’s will to be done,” said Jeff Parker, 53, from the Cincinnati suburb of Madeira.

Gay marriage is legal in 19 states and the District of Columbia. Other states’ bans are tied up in courts.

Two federal appeals courts have ruled in favor of gay marriage – one in Denver in June and another in Richmond, Virginia, last week. On Tuesday, Utah appealed one of those rulings, asking the U.S. Supreme Court to take up the case and uphold its ban. Oklahoma followed suit Wednesday.

The 6th Circuit is the first of three federal appeals courts to hear arguments from multiple states in coming weeks. 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 to take up Idaho’s and Nevada’s bans Sept. 8.

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Associated Press writers Lisa Cornwell and Dan Sewell contributed. Follow Amanda Lee Myers on Twitter at https://twitter.com/AmandaLeeAP

Source:  AP, “Judges weigh 4 states’ same-sex marriage cases,” by Amanda Lee Myers and Brett Barrouquere, Published: August 6, 2014

Kentucky ban on gay marriages from other states struck down by federal judge

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Greg Bourke, right, and Michael Deleon have filed a federal lawsuit asking for Kentucky to recognize same sex marriages. July 26, 2013 / Scott Utterback/The Courier-Journal

In a ruling that could open the door to gay marriage in Kentucky, a federal judge on Wednesday struck down Kentucky’s ban on recognizing valid same-sex marriages performed in other states, saying it violates the U.S. Constitution’s guarantee of equal protection under the law.

U.S. District Judge John G. Heyburn II joined nine other federal and state courts in invalidating such bans.

Ruling in a suit brought by four gay and lesbian couples, Heyburn said that while “religious beliefs … are vital to the fabric of society … assigning a religious or traditional rationale for a law does not make it constitutional when that law discriminates against a class of people without other reasons.”

Heyburn said “it is clear that Kentucky’s laws treat gay and lesbian persons differently in a way that demeans them.”

MORE | Bluegrass Poll says Kentucky attitudes shifting on gay marriage

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Citing the U.S. Supreme Court’s ruling throwing out the Defense of Marriage Act, Heyburn struck down the portion of Kentucky’s 2004 constitutional amendment that said “only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky.”

The suit asked only that Kentucky be required to recognize gay marriages performed elsewhere; it is unclear whether the ruling also opens the door to allowing gay couples to get married in Kentucky, which the state’s constitution forbids.

The plaintiffs’ lawyers say they believe it may, while the Kentucky Attorney General’s Office, which defended the case, is reviewing that question, spokeswoman Allison Martin said.

Heyburn did not rule that Kentucky must allow gay marriages to be performed in the state.In a 23-page ruling, Heyburn said Kentucky’s sole justification for the the amendment was that was it was “rationally related to the legitimate government interest of preserving the state’s institution of traditional marriage.”

But Heyburn noted that over the past 40 years, the U.S. Supreme Court has refused to allow mere tradition to justify marriage statutes that violate individual liberties, such as the ban on interracial marriages that was once the law in Virginia, Kentucky and other states.

Heyburn also rejected the arguments of the Family Foundation of Kentucky — that recognizing same-sex marriages would undermine the fundamental role of marriage in ensuring procreation.

Heyburn said there is no requirement that opposite-sex couples agree to procreate to get married.

He also said “no one has offered any evidence that recognizing same-sex marriages will harm opposite-sex marriages.”

Responding to the ruling, Martin Cochran, an analyst for the Family Foundation of Kentucky, said in a news release that it “nullifies the right of Kentucky to determine policies regarding marriage” and that “Kentucky marriage policy will now be dictated from places like Boston and San Francisco.”

“If a state like Utah were ever to legalize polygamy, Kentucky would be forced to recognize it under this decision,” Cothran added.

Cothran said Kentucky voters will be disappointed with the practical effects of this decision. “This decision puts Kentucky voters on notice that if their reasons for defining marriage as between a man and a woman don’t correspond with the political ideology of liberal judges, their votes don’t count.”

The suit was filed on behalf of Gregory Bourke and Michael Deleon of Louisville, who were married in Ontario, Canada, in 2004; Jimmy Meade and Luther Barlowe, who live in Bardstown and were lawfully married in Davenport, Iowa, in 2009; Randell Johnson and Paul Campion, who live in Louisville and were married in Riverside, Calif., in 2008; and Kimberly Franklin and Tamera Boyd, who live in Cropper and were married in Stratford, Conn., in 2010.

The complaint also named their children.

Kentucky Ruling is the Latest Sign of Growing Marriage Equality Momentum

Today, Kentucky became the latest state to have its ban on marriage equality ruled unconstitutional by a federal judge, and the case will soon join others based in Utah, Nevada, Ohio and Oklahoma at the appellate level.

U.S. District Court Judge John G. Heyburn II ruled that Kentucky ’s marriage amendment violates the constitutional principal of equal protection and that the Commonwealth cannot refuse to recognize valid same-sex marriages conducted in other states. The judge, who was appointed to the bench by President George H. W. Bush, sided with four plaintiff couples who had legally married elsewhere before seeking state recognition in Kentucky.

In light of the news, HRC President Chad Griffin issued the following statement:

“Today, this nation took another bold step toward its fundamental constitutional principles of equal justice under the law. This amendment is unconstitutional, and we believe the only true solution to the injustice faced by these plaintiffs is full marriage equality. We hope all parties act swiftly and fairly to allow all loving and committed Kentucky couples the opportunity to marry in the state they call home.”

This new marriage ruling is not final and is likely to be appealed, joining other federal court cases in Utah, Nevada, Ohio and Oklahoma—all of which are currently at the appellate level. This week, the Attorney General in Nevada withdrew that state’s defense of its marriage ban in a case currently pending before the U.S. Court of Appeals for the Ninth Circuit. A new ruling is expected soon in a federal marriage case in Virginia (Bostic v. Rainey).

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Source: HRC Blog, February 12, 2014