Sixth Circuit hears marriage arguments

by Anthony Glassman

Cincinnati--The Sixth Circuit Court of Appeals heard arguments in six marriage cases that would affect four states on August 6, including cases involving married same-sex couples with children and whether Ohio must recognize out-of-state marriages on death certificates.

�Married same-sex couples are having children in and adopting children from Ohio, and the state should not be stacking the deck against those children by refusing to recognize the marriages of their parents,� notes Susan Sommer, Lambda Legal�s director of constitutional litigation. �The Sixth Circuit should join the avalanche of federal circuit and district courts around the country ruling that depriving same-sex couples and their families of the protections and dignity that come with marriage is flat out unconstitutional.�

The Sixth Circuit covers Michigan, Ohio, Kentucky and Tennessee. Other cases are currently before the federal appellate courts in other circuits or have already been ruled on by appeals courts, and all those cases went in favor of marriage equality thus far.

Two of the judges on the Sixth Circuit�s panel were appointed by George W. Bush, the third by Bill Clinton. Judge Jeffrey S. Sutton, a Bush appointee, is considered a likely swing vote and asked why the court should take up the matter instead of letting the voters decide, especially given the recent string of ballot victories by advocates for marriage equality.

However, he also questioned whether the arguments against same-sex marriage could stand up to the �heightened scrutiny� usually given in civil rights cases.

The Tenth Circuit Court of Appeal in Denver struck bans in Utah and Oklahoma, while the Fourth Circuit nixed Virginia�s ban. Were the Sixth Circuit to rule against same-sex marriage, the conflict between circuits would give more impetus to the Supreme Court to take up the question of whether there is a right to same-sex marriage, rather than letting the various circuits slowly spread marriage equality across the country, region by region.

Indiana and Wisconsin cases will go before the Seventh Circuit at the end of the month, the next appellate court to handle the issue.

�Our clients and their children need the full protections of marriage,� said Alphonse Gerhardstein, who successfully argued for the recognition of same-sex marriage before federal judges in two cases in Cincinnati. �The state of Ohio�s refusal to recognize marriages of same-sex couples relegates them to a second-class status for no legitimate reason. We are asking the court to side with love and commitment, and to recognize the importance of our families� marriages and their need for the security that comes from accurate birth certificates.�

The day before the Sixth Circuit heard arguments in the cases, a state judge in Tennessee handed down the first ruling upholding a state marriage ban.

Ninth Judicial District Circuit Court Judge Russell Simmons Jr. upheld the state�s constitutional ban on same-sex marriage as well as the statutory ban on recognition of same-sex marriages performed in jurisdictions that allow them.

Simmons accepted the state�s argument that the inability of same-sex couples to procreate was acceptable as a rationalization for the law against same-sex marriage.

�Again, a court does not review a statute�s wisdom or desirability but considers only whether it has a rational basis. And there is nothing irrational about limiting the institution of marriage to the purpose for which it was created, by embracing the traditional definition,� he wrote. �To conclude otherwise is to impose one�s own view of a what a State out to do on the subject of same-sex marriage.�

However, while a number of commentators on both sides of the issue made a great deal out of Simmons� ruling being the first in fourteen months to go against same-sex marriage, he is also a state-level judge, not a federal one. The streak of pro-marriage rulings on the federal level is so far intact, and if the Sixth Circuit were to rule in favor of same-sex marriage, it would overturn Simmons� ruling.