The U.S. Court of Appeals for the Sixth Circuit on Wednesday reviewed same-sex marriage laws in Kentucky, Michigan, Ohio and Tennessee. (Photo: Al Behrman/AP)
The U.S. Court of Appeals for the Sixth Circuit heard arguments on Wednesday in six cases challenging state laws that deny legal recognition to same-sex couples.
The court began the argument over Michigan’s constitutional amendment banning same-sex marriage. Judge Jeffrey Sutton, appointed by President George W. Bush, questioned the state’s justification for the ban, noting that although marriage was historically tied to procreation, “modern conceptions of marriage are more about love, affection and commitment.”
“If you think about marriage just through that lens—love, affection, commitment—it does start to get a little difficult to see the difference between the one group eligible and the other group not,” Sutton said. (The Sixth Circuit posted audio of the argument here.)
Michigan Solicitor General Aaron Lindstrom replied that unlike other types of relationships, the state had an interest in marriage. One of the reasons why the state had that interest, he said, was because marriage traditionally is linked to children, and the state had an interest in ensuring families with one mother and one father.
Sutton asked lawyers on both sides about how the court should apply Baker v. Nelson, a 1972 U.S. Supreme Court decision. In that one-sentence ruling, the high court dismissed an appeal of a same-sex marriage ban in Minnesota “for want of substantial federal question.”
Sutton asked Carole Stanyar, the Ann Arbor, Mich.-based attorney for the challengers, if the court was “stuck” with Baker as long as it was the binding precedent from the Supreme Court.
Stanyar replied that the decision was binding unless there were “doctrinal developments.” She argued there had been such developments, including the high court’s 2013 ruling in United States v. Windsor striking down a section of the federal Defense of Marriage Act.
Senior Judge Martha Craig Daughtrey, appointed by President Bill Clinton, and Judge Deborah Cook, a George W. Bush appointee, sat on Wednesday’s panel.
Daughtrey pressed Lindstrom about his reference to the potential “societal” harms of same-sex marriage, noting that a number of other states already allowed it “and it doesn’t look like the sky has fallen in.”
Lindstrom replied that it was too early to fully study the effects of same-sex marriage on children.
The Sixth Circuit also heard arguments on Wednesday on challenges to laws in Ohio, Kentucky and Tennessee banning same-sex marriage or the recognition of same-sex couples who were legally married in other jurisdictions.
The Sixth Circuit is the third federal appeals court to consider same-sex marriage. The Fourth and Tenth circuits both struck down gay-marriage bans this year. Challenges are also pending in the Fifth, Seventh and Ninth circuits.
For recent NLJ coverage on same-sex marriage challenges: