Advocates of same-sex marriage marched in Cincinnati on Wednesday.
ONE COURT, THREE JUDGES AND FOUR STATES WITH GAY MARRIAGE CASES, by Erik Eckholm -- http://www.nytimes.com/2014/08/07/us/one-court-three-judges-and-four-states-with-gay-marriage-cases.html?_r=0
My home state of Ohio joined Kentucky, Michigan and Tennessee in federal court on Wednesday where each defended its ban on same-sex marriage. It didn't go as smoothly as I'd hoped."The steady march of judicial approval for same-sex marriage over the past year ran into some skepticism...on Wednesday as a three-judge federal appeals panel heard arguments in six same-sex marriage cases from four states."
The panel consisted of two judges appointed by George W. and one appointed by Bill Clinton. The hearing lasted for three hours."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.'"
Maybe because these people are asking the court to intervene because they are sick of waiting for the "democratic process" that created these same-sex marriage bans in the first place to un-create them.
Really, if a state legislature or state voters put such a ban in place, how else are gay couples supposed to get them reversed if not through the court system? Public opinion may have changed over the past decade; but, as evidenced by the number of states appearing in District Courts defending their bans, it doesn't look like state governments are inclined to respond positively to the current tide.
And has Judge Sutton forgotten that it was the Supreme Court that jump-started the present-day movement by overturning DOMA? The movement started in the court system and it will have to end there."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."
Which is sort of the point of bringing the cases to court, so he seems to have answered his own question."But he also wondered whether legal precedents...should prevent the panel from declaring same-sex marriage to be a fundamental right deserving court intervention."
May I say that Judge Sutton sounds an awful lot like a closet homophobe looking for an excuse to hide behind?"In often caustic questions, Judge Martha Craig Daughtrey, the Clinton appointee, left no doubt where she stood. When the lawyer for Michigan said that the courts should not tamper with an institution as deeply rooted as marriage, she replied that bans on interracial marriage were also deeply rooted before the Supreme Court found them unconstitutional. 'That was the law across a huge swath of the Southern states,' she said.
The third judge, Deborah L. Cook, another Bush appointee, spoke little during the unusual proceeding in which one state's case followed another without any breaks. But she seemed to favor the right of states to ban same-sex marriage.
If this court were to rule against same-sex marriage, it would create greater pressure on the Supreme Court to rule on the issue to clear up the contradictory decisions among appeals courts."
Well, if there is a bright side to the chance that my District Court may be the one to put the brakes on the same-sex marriage juggernaut, I guess that would be it; but I would still prefer that I didn't find myself living in a state facing the wrong way in this fight."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."
But if popular opinion is changing, as Judge Sutton suggested, that would mean the "will of the people" in 2014 is not the same as it was in 2004--and it would seem to give the court a reason to nudge the "democratic process" along."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."
If same-sex marriage is an "expansion...reflecting shifting social norms," then why are states fighting to stop it? And calling the right to marry a "new right" is an argument that rates a big "Huh?""This week, Utah and a county clerk in Oklahoma petitioned the Supreme Court for a hearing. More such appeals are expected, and many experts predict that the Supreme Court will accept one or more of these appeals this fall, for a decision in 2015. If the Cincinnati panel or another appeals court rules against same-sex marriage, resulting in a 'circuit split,' quick Supreme Court action would be virtually certain."
Other arguments presented were Michigan's claim that marriage between a man and women is a "bedrock of society." Judge Daughtrey responded that "It doesn't look like the sky has fallen" in any of the states that now recognize same-sex marriage.
Kentucky argued an economic rationale by claiming that natural procreation among heterosexual couples is necessary for a strong economy. This is one of those arguments that makes zero sense to me. I wonder how Kentucky would handle heterosexual couples who choose not to have children. If, after xxx number of years as a married couple there are no children in evidence, will the couple receive a State-Sanctioned Annulment Notice in the mail because they didn't procreate? Or will Kentucky insist they pay a We-Don't-Have-Children-Fine-of-Shame into the state coffers in order to keep the economy booming? And judging by the number of same-sex couples with infants on hand in the Cincinnati courtroom this week, it doesn't appear that baby-making is a problem for same-sex couples.
The fight continues with cases from Indiana and Wisconsin scheduled before the Seventh Circuit Court on August 26. The Ninth Circuit Court will hear arguments from Idaho and Nevada on September 8.
This bump in the road to marriage equality surprised me and disappointed me. I can only hope Judge Sutton recognizes that his apparent personal aversion is not a legal argument.
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