gays court
Photo: Al Behrman/AP


What the New York Times correctly calls “the steady march of judicial approval for same-sex marriage over the past year” hit a speed bump, if not a road block, this week as the United States Court of Appeals for the Sixth Circuit heard arguments in six same-sex marriages cases appealed by four states.

Judges have been marching in lock-step to overturn democratic laws which define marriage as the union of a man and a woman. More than more than two dozen lower courts and two appeals courts have ruled that gay couples have a right to marry. Some states have fought back, including Kentucky, Michigan, Ohio and Tennessee, whose cases came before three judges of Sixth Circuit this week.

“Who gets to decide what the definition of marriage is?” asked Aaron D. Lindstrom, solicitor general of Michigan.

And for once, it seems, a judge thought it was a good question. The Times reports:

Judge Jeffrey S. Sutton, one of the Bush appointees and a likely swing vote among the three, repeatedly asked why gay rights advocates wanted to use the courts to hasten an outcome they were gradually winning through elections and changes in attitude.

“I’d have thought the best way to get respect and dignity is through the democratic process,” he said, expressing a view that, in practice, would most likely deliver a victory to the states seeking to keep bans on same-sex marriage.

During the hearing — attended by three lesbian couples with babies involved in the case, and attracting demonstrators from both sides of the marriage debate — some familiar arguments were rolled out on both sides.

The lawyers said that the judiciary should not be tampering with an institution as deeply rooted as marriage; that changing the definition of marriage carried potential social harm; that the state had an interest an interest in marriage because marriage traditionally is linked to children, and the state had an interest in ensuring families with one mother and one father. In addition:

Offering a new variation in arguments against licensing same-sex marriage, Kentucky officials offered an economic rationale, saying that only heterosexual couples could procreate naturally and that procreation was essential for creating a strong economy, evidenced by reports that the declining birthrate in Europe had harmed economic growth.

Asked by Judge Daughtrey to explain why barring gay men and lesbians from marrying served this state interest, Leigh Gross Latherow, a private lawyer hired by Kentucky, said that “same-sex couples cannot procreate” and that only heterosexual couples, “who can procreate and we believe do procreate,” should receive the state-sponsored benefit of legal marriage.

The judges countered with the milque-toaste view of marriage today as “more about love, affection and commitment” than procreation (Sutton); with the spurious comparison with the former ban on inter-racial marriage in the US; and with the tiresome cliché about the sky not having fallen in following legalisation of same-sex marriage in many states (Judge Martha Craig Daughtrey).

In general:

A core issue, lawyers representing the states said again and again, was whether the federal courts had a right to overrule the will of the people.


A second crucial issue in Wednesday’s hearings and in courts across the country is whether same-sex marriage is simply an expansion of a well-established fundamental right to marry reflecting shifting social norms, and thus worthy of constitutional protection, or whether gay couples “seek recognition of a new right,” as Kentucky argued.

Of course, the vital question in the whole marriage debate is not whether marriage is a fundamental right, but what marriage is: an emotional relationship or a comprehensive one based on sexual complementarity.

Judge Sutton did suggest that the arguments offered against marriage equality were weak, saying that marriage bans would be hard to defend if subjected to the intense “heightened scrutiny” that courts apply when fundamental civil rights are at stake.

The original question remains: why are the courts even dealing with this issue?

But [Sutton] also wondered whether legal precedents in the Sixth Circuit and the Supreme Court should prevent the panel from declaring same-sex marriage to be a fundamental right deserving court intervention.

However, several other appeals are in process and many experts predict that the Supreme Court will accept one of them. 

Carolyn Moynihan

Carolyn Moynihan is the former deputy editor of MercatorNet