Although two federal appeals courts have already ruled that state bans on marriage equality constitute illegal discrimination, the relatively conservative 6th Circuit Court of Appeals could potentially break LGBT rights’ year-long winning streak.
If the panel goes against the tide and decides that states should have the right to define marriage, the US Supreme Court will come under increased pressure to decide the issue once and for all.
On August 6, when the 6th Circuit Court heard six cases regarding marriage equality laws in four states, much of the debate centered around the case that took down the Defense of Marriage Act, US v. Windsor, in June 2013. That decision allowed the US government to grant federal benefits to same-sex couples who married in states or countries where it is legal. The question that decision raised is whether or not marriage is a fundamental right for all couples; if it is, that would mean conservative states cannot legally ban same-sex couples from marrying.
The hearing was presided over by judges Deborah Cook, Martha Craig Daughtrey, and Jeffrey Sutton, all randomly selected. According to the Washington Post, some of their questions raised concerns within the LGBT community.
Sutton, for instance, repeatedly inquired why the plaintiffs didn’t seek to have marriage laws changed via the democratic process, working to win the “hearts and minds” of ordinary citizens rather than achieve their goals through “five votes of the Supreme Court.”
An attorney for the couples, Alphonse Gerhardstein, replied that it is wrong to allow what should be a fundamental right to be subject to popular approval.
Both Sutton and Cook were nominated to their positions by president George W. Bush, while Daughtrey’s nomination was by president Bill Clinton. The Post reported that Cook “appeared to side with the states” and opponents of marriage equality, while Daughtrey was firmly in support of same-sex marriage. The Post reported that in addition to posing “tough questions for the states’ lawyers,” Daughtrey brought up multiple civil rights cases from history, especially Loving v. Virginia, a 1967 court case that declared interracial marriage bans were unconstitutional.
Sutton appeared to be the swing vote, giving “both sides reason for hope and concern.” A former clerk for the notoriously conservative Supreme Court Justice Antonin Scalia, he stated that the real question is whether states have the right to restrict who has the right to marry. However, Sutton also said that while the Windsor case’s intention regarding states’ rights is unclear, the current “trajectory” of LGBT rights is obvious: they are gaining more recognition and protection.
The judges have no deadline for making their decisions, and have not announced an intended timeline. Additional challenges to states’ marriage equality bans are expected to be heard soon in three other appeals courts.