LISTEN: Oral Arguments at the 6th Circuit Court of Appeals

Today, August 6, the United States Court of Appeals for the 6th Circuit heard oral arguments in six landmark marriage cases out of four different states - Kentucky, Michigan, Ohio, and Tennessee. In each state, federal judges have ruled in favor of marriage for same-sex couples. The individual court decisions were slightly different, and all six rulings were appealed and heard by a 3-judge panel today.

Please note that a ruling is not expected for at least a few weeks. Two other federal appellate courts - the 10th Circuit and the 4th Circuit - have already affirmed the freedom to marry in three different cases, and defendants in all three cases have said they will seek review from the United States Supreme Court. In the conclusion of the 6th Circuit's arguments, Judge Sutton said, "I don't think anyone is under the illusion that this is the road for anyone, so we'll do our best with this, and try to do it quickly."

Freedom to Marry National Campaign Director Marc Solomon reflected today: 

"After hearing the powerful stories of families from across the heartland, these judges should now understand clearly why the denial of marriage is both unjust and unconstitutional. This panel of judges should do what 36 other courts have done to date and strike down these marriage bans."

Previous Coverage of Marriage at the 6th Circuit

Michigan: DeBoer v. Snyder

On March 21, a federal judge ruled in favor of the freedom to marry in this case, striking down the marriage ban for same-sex couples. For the next 24 hours, more than 300 same-sex couples across the state received marriage licenses in Michigan until the 6th Circuit Court of Appeals granted a stay in the decision.

Listen to the oral argument below. The first half hour includes arguments from the defense (marriage opponents), and the second half hour includes arguments from the plaintiffs' legal team, argued by Carol Stanyer.

Some key quotes from the judges:

  • "So what you want us to do is take an 11-word opinion and knock out all of the opinions that have come out involving same-sex marriage in the last 11 years?" - Judge Daughtrey, in reference to the Supreme Court's response in Baker v. Nelson in 1971
  • "What is the rational basis of excluding everybody else? It doesn't cut down on the procreation of children or interfere with the procreation of children just because you've got two people of the same-sex marrying - and in some of those marriages, at least one of those partners is able to procreate." - Judge Daughtrey
  • "Isn't it a little hypocritical then to allow people to marry who can't procreate, but to prevent same-sex partners from marrying?" - Judge Daughtrey
  • "We're now beyond 25% of the jurisdictions in the country and probably more than that in terms of population as a whole - it doesn't look like the sky has fallen in." - Judge Daughtrey
  • "I thought there was a lot of evidence coming out of the trial in Michigan saying that the outcome on children was reasonably benign." - Judge Daughtrey

Key quotes from Carol Stanyer, attorney for plaintiffs:

  • "We show in this case that no matter what standard of scrutiny the court uses, no matter what doctrine the court applies, the state can't prevail here: The Michigan amendment is unconstitutional."
  • "We are not asking to redefine the marital relationship: We are only asking for an end to the exclusion of same-sex couples from the right to marry."
  • "Fundamental constitutional rights may not be submitted to popular vote - they depend on the outcome of no election."
  • "April DeBoer is a legal stranger to her son, and Jayne Rowse is a legal stranger to her own daughter."
  • "The injury of marriage inequality is especially unjust, especially cruel for our plaintiffs: A NICU nurse, an emergency room nurse, taking in the babies that were left behind - a premature infant in an incubator struggling to live, special needs children, hard-to-place children, children of color, foster children. April and Jayne took them in."

Kentucky: Bourke v. Beshear & Love v. Beshear

On Feb. 12, a federal judge ruled in this case, brought by Fauver Law Office, led by primary attorneys Shannon Fauver and Dawn Elliot, with further involvement from Clay Daniel Walton & Adams attorneys Dan Cannon, Laura Landenwich and L. Joe Dunman, that Kentucky must respect the marriages of same-sex couples legally performed in other states.

On July 1, the same judge ruled in a related case, Love v. Beshear, brought by two unmarried same-sex couples who intervened in the case. In that decision, the judge struck down the Kentucky marriage ban altogether. Notably, the Kentucky Attorney General, Jack Conway, announced that he would not appeal the ruling - but an appeal was still filed by KY Gov. Beshear.

Listen to the oral argument below. The first fifteen minutes are the arguments from the appellants (the state of Kentucky) and the second fifteen minutes are from the plaintiffs' legal team from Fauver Law.

Some key quotes from the judges:

  • "How does that Kentucky law advance a state interest? How does it do it? What is the mechanism? Couples who aren't married procreate, too. And more and more couples these days are not getting married and they're procreating. So how does the law advance procreation?" - Judge Daughtrey
  • The Supreme Court has also said that people have a right not to procreate - in Griswald. Marriage doesn't mean you have to procreate: There is a right not to procreate. What is it about procreation that will stop procreation in Kentucky?" - Judge Daughtrey
  • "That's a helpful opinion, but it's one opinion: And it's from a person who's no longer on the court." - Judge Sutton, in reference to state's attorney Leigh Latherow's citation of Supreme Court Justice O'Connor's words in 'Lawrence v. Texas' about 'preserving traditional marriage.'

Key quotes from Laura Landenwich, attorney for plaintiffs:

  • "Kentucky's laws place a badge of inferiority on people and families, and it invades the sphere of individual rights protected by the Constitution. In rejecting this intrusion, Judge Heyburn found that rejecting the Commonwealth's justifications for the marriage ban are 'not the arguments of serious people.'"
  • "The 4th Circuit in Bostic recently rejected a very similar argument to the one put forth by Kentucky today, and it found that the law was so under-inclusive, because it included so many infertile couples, so many women over the age of child-bearing years who were still permitted to participate in the marital institution."
  • "What Justice Kennedy affirmed is that same-sex couples are included in what we think about when we talk about marriage. When we talk about federalism, which I know Judge Sutton has some concerns about, it's important to point out that those arguments were raised in the 4th Circuit and the 10th Circuit, and those arguments were rejected. They were also raised in Loving, and the Court rejected that."
  • "The fundamental right to marry has not changed: What has changed is our understanding of what it means to be gay and lesbian. And now we must recognize that these individuals are entitled to the equal protection of the law and they are entitled to exercise their fundamental right."
  • "In his dissent in Windsor, Justice Scalia noted that the implications of Windsor are unmistakable: Beginning with Loving and continuing through Lawrence and Windsor, the path to marriage equality has been laid. We now ask this court to walk down it."

Ohio: Obergefell v. Wymyslo & Henry v. Wymyslo

On Dec. 23, a federal judge ruled in Obergefell v. Wymyslo that the state of Ohio must respect the marriages of same-sex couples legally performed in other states for the purpose of listing surviving spouses on death certificates. In April 2014, in a separate federal case, Henry v. Himes, the same judge ruled that Ohio must respect all married same-sex couples who wed in other states for all state purposes. Both cases were brought by private firms Gerhardstein & Branch Co., LPA and Newman & Meeks Co., LPA, with the ACLU joining Obergefell and Lambda Legal joining Henry.

The first 30 minutes are the arguments from the appellants (the state of Ohio) and the second 30 minutes are from the plaintiffs' legal team from Gerhardstein & Branch Co., LPA and Newman & Meeks Co., LPA.

Tennessee: Tanco v. Haslam

On March 14, a federal judge ordered state officials to respect the marriages of three same-sex couples whose lawsuit, Tanco v. Haslam, challenges the state’s marriage ban. The couples are represented by the National Center for Lesbian Rights.

The first 15 minutes are the arguments from the appellants (the state of Tennessee) and the second 15 minutes are from the plaintiffs' legal team from the National Center for Lesbian Rights. The plaintiffs' arguments were delivered by attorney William Harbison.

Key quotes from 6th Circuit judges:

  • "[Same-sex couples] are going to go on having children and they're going to go on getting married. It's happening in states where same-sex marriages are allowed: I'm sorry, I'm struggling to get this picture. There's nothing about these laws that have stopped any heterosexual couple from getting married or discouraged them from procreating deliberately or accidentally. What are we dealing with here?"

Key quotes from Bill Harbison attorney for plaintiffs:

  • "Tennessee's laws do, in fact, cause harm to the plaintiffs. They cause harm to people similarly situated. [The marriage ban] is an extreme intrusion into a relationship that they've formed validly, voluntarily. They not only asked for benefits, but they assumed obligations to each other and to their children. There are children in our case - there's even been a child born during the case. I don't think the harm caused to these plaintiffs is really in controversy."
  • "We're not in a hypothetical world: We have marriage in this world. And these plaintiffs are married and do have children. Historically what has happened is Tennessee has had marriage for a long time, and they passed these laws for fear that same-sex couples will seek marriage."
  • "What Tennessee did [when they passed this law] was taking the normal 'place of celebration' rule that Tennessee had always honored - people who are married elsewhere and moved to Tennessee would be considered married in Tennessee - and then acting to prevent that [for same-sex couples]. To me the court needs to ask why Tennessee did that. What was the reason for Tennessee doing that? The reason they have given is procreation, but there is not a logical link between procreation and what these laws are attempting to do. They don't further procreation, they don't make accidental procreation more or less likely. They don't have a connection with that purpose."

Learn all about the 6th Circuit Marriage Cases Here