During the last five days, a media spotlight has been cast on the Sixth Circuit as legal pundits and observers try to dissect last Wednesday’s oral arguments in the same-sex marriage appeals before the Court. The three-judge panel which heard the appeals included Judges Martha Craig Daughtrey of Tennessee, Jeffrey Sutton of Columbus, and Deborah Cook of Akron. They devoted three straight hours of oral argument to the appeals.
Judge Sutton was the most active judge on the panel, and his questions were thoughtful and balanced. He asked critical questions of both sides. On the one hand, Judge Sutton repeatedly questioned why same-sex marriages supporters are focused on the judiciary rather than the legislature. “I would have thought the best way to get respect and dignity is through the democratic process,” Sutton said. “Nothing happens as quickly as we’d like it. . . . I’m not 100% sure it’s the better route for the gay rights community,” he added. On the other hand, Judge Sutton suggested that the arguments offered by the state in support of same-sex marriage bans were weak, and that they would be hard to defend if they were reviewed under a heightened standard of review.
Judge Daughtrey also engaged in some spirited exchanges during oral arguments. When Michigan’s lawyer argued that the judiciary should not tamper with deeply rooted notions of traditional marriage, Judge Daughtrey shot back that bans on interracial marriage also were deeply enshrined in American law before the U.S. Supreme Court struck them down as unconstitutional. “That was the law across a huge swath of the Southern states,’ Daughtery said. In contrast, Judge Cook was relatively quiet during oral argument.
Reports in several major media outlets suggest that the Sixth Circuit’s decisions remain a toss-up, with the overall panel leaning toward a rejection of the constitutional arguments for same-sex marriage. But don’t take the media’s word for it. An audio link to the Sixth Circuit’s oral arguments can be found here.
A couple of observations: First, if the Sixth Circuit rules in favor of the states, its decision will create a circuit split with the Fourth and Tenth Circuits, both of which have overturned same-sex marriage bans. Second, as Judge Sutton recognized at the close of oral arguments, the Sixth Circuit will not be the last word in the same-sex marriage battles. The U.S. Supreme Court almost certainly will hear the legal challenge, regardless of whether the Sixth Circuit creates a circuit split. Third, given the high-profile nature of these appeals, expect prompt decisions from the Sixth Circuit, with opinions in as little as two months. We’ll, of course, be right there to cover the latest developments at the Sixth Circuit.