Federal appeals court taking up six gay marriage cases today

The convergence of cases could produce a massive showdown over gay marriage, as early as next year, when the cases are expected to be appealed to the US Supreme Court.

Tom Uhlman/AP
Duane Lewis and Rex Van Alstine (r.) hold their hands to their chest as the national anthem plays during a rally in support of gay marriage in downtown Cincinnati, Tuesday, Aug. 5. The Cincinnati-based 6th US Circuit Court of Appeals will hear arguments in six gay marriage fights from Ohio, Michigan, Kentucky, and Tennessee on Wednesday.

In an unusual convergence of high-stakes litigation, a federal appeals court on Wednesday is taking up six different cases challenging aspects of same-sex marriage restrictions in Michigan, Ohio, Kentucky, and Tennessee.

The cases, being heard by a three-judge panel in Cincinnati, are among the front edge of nearly 80 pending lawsuits seeking to overturn barriers to gay marriage nationwide.

Two appeals courts – in Denver; and Richmond, Va. – recently struck down same-sex marriage bans in Utah, Oklahoma, and Virginia. Both courts ruled that the US Constitution protects a fundamental right to marry without regard to sexual orientation and that states may not enact regulations restricting that right.

More cases are coming. On Aug. 26, a federal appeals court in Chicago is scheduled to hear challenges to gay marriage bans in Wisconsin and Indiana. And on Sept. 8, a federal appeals court in San Francisco will examine same-sex marriage bans in Nevada and Idaho.

The resulting decisions from all these cases are expected to be appealed to the US Supreme Court for what could amount to a massive and final showdown over same-sex marriage. That could happen as early as next year.

Wednesday’s cases in Cincinnati involve two types of lawsuits – those challenging bans on same-sex marriage and those challenging state refusal to recognize the validity of a same-sex marriage performed in another state.

The Michigan case and one of the Kentucky cases involve opposition to bans on gay marriage.

The other lawsuits in Kentucky, Ohio, and Tennessee are aimed at forcing those states to recognize same-sex marriages performed out of state in the same way that heterosexual marriages performed in another state are automatically recognized.

In all six cases, federal judges sided with the same-sex partners, declaring that the bans and other restrictions violate constitutional protections.

In some cases, judges found that gay men and lesbians enjoy a fundamental right to marry under the US Constitution. Other judges declined to rule on whether such a fundamental right exists.

But gay couples still won. The other judges declared that state restrictions on same-sex marriages violated principles of equal treatment enshrined in the Constitution.

They ruled that same-sex couples cannot be treated differently from the treatment of opposite-sex couples unless the state provides a valid justification for the different treatment. The judges rejected the state’s justifications.

In each of the six cases, lawyers for the states are defending their states’ embrace of the traditional definition of marriage as a union between one man and one woman.

They argue that the US Supreme Court has never recognized a broad, fundamental right to marriage regardless of sexual orientation.

They also argue that it should be up to state governments and state voters – rather than unelected judges – to decide how best to regulate marriage within the states.

Currently, 19 states and the District of Columbia recognize same-sex marriages, while 31 states bar such unions by statute or constitutional amendment.

The three-judge panel set to decide the cases is made up of two judges appointed by President George W. Bush and one judge appointed by President Clinton.

The six cases being heard on Wednesday are:

Henry v. Himes: The case was filed by four same-sex couples in Ohio who are seeking to have both their names listed on their children’s birth certificates. State officials refused to include more than one name on an Ohio-issued birth certificate, since the state does not recognize same-sex marriages, including same-sex marriages conducted in other states.

The Ohio-based plaintiffs are Brittani Henry and Brittni Rogers, Nicole and Pam Yorksmith, and Kelly Noe and Kelly McCracken.

The fourth couple, Joseph Vitale and Robert Talmas, live in New York City and adopted a child from Ohio. They also want both their names listed on their son’s birth certificate.

Obergefell v. Himes: At issue is whether James Obergefell is entitled to be listed on an Ohio death certificate as the spouse of his 20-year partner, John Arthur. Mr. Arthur died in October 2013 after being diagnosed with ALS, also known as Lou Gehrig’s disease.

Four months before his death, Mr. Obergefell and Arthur traveled by private plane to Maryland, which recognizes same-sex marriage. There, on the airport tarmac with Arthur in his hospital bed on the plane, the couple was pronounced husband and husband.

Ohio officials refused to record Obergefell as the surviving spouse because such marriages are not recognized in Ohio.

DeBoer v. Synder: This challenge to Michigan’s ban on same-sex marriages was filed by two nurses, April DeBoer and Jayne Rowse, who want the full legal protections of a Michigan family for them and their adopted children.

Michigan law allows adoption by a married couple or by a single individual, but not by an unmarried couple.

In accord with Michigan law, even though Ms. DeBoer and Ms. Rowse were a couple, they decided to adopt individually to build their family. DeBoer individually adopted a daughter, and Rowse individually adopted two sons.

They sued the state to be able to adopt their partner's adopted child. In ruling for the couple, a federal judge said the Michigan ban violated the couple’s right to be treated equally with other couples in Michigan. The judge said the restriction blocking same-sex marriage was not rationally related to a legitimate government purpose.

The judge did not address whether there was a fundamental right to same-sex marriage.

Love v. Beshear: Timothy Love and Lawrence Ysunza of Louisville, Ky., have been together for 34 years. Maurice Blanchard and Dominique James, also of Louisville, have been together for 10 years. Both couples wanted to marry but were denied licenses from a local clerk. They sued, and a federal judge ruled that Kentucky’s constitutional amendment banning same-sex marriage violated equal protection required by the Constitution.

Bourke v. Beshear: Four same-sex couples sued to challenge Kentucky’s refusal to recognize marriages of gay men and lesbians performed out of state. A federal judge agreed with the couples, ruling that the state must treat same-sex couples on equal terms with opposite-sex couples. The plaintiffs are all couples living in Kentucky who were married legally in states that recognize same-sex marriages. They are Greg Bourke and Michael DeLeon, who are raising two adopted children, Jim Meade and Luke Barlowe, Tammy Boyd and Kim Franklin, and Paul Campion and Randy Johnson, who are raising four adopted children.

Tanco v. Haslam: Three same-sex couples are suing to overturn Tennessee’s refusal to recognize the legitimacy of their marriages. Two of the couples were married in New York, and the third was married in California.

Valeria Tanco and Sophia Jesty have been married since 2011 and are raising a child together who was conceived through artificial insemination. Under Tennessee law, only the birth parent can be recognized as the child’s parent, though both women view themselves as parents.

The other two couples are Ijpe DeKoe and Thomas Kostura of Memphis and Johno Espejo and Mathew Mansell of Franklin, who are raising two adopted children, a son and daughter.

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