A same-sex marriage showdown happens in Cincinnati on Wednesday as three federal appeals judges, including two Ohioans, hear marriage cases from Ohio and three neighboring states.
It will be the single-largest legal event in the same-sex marriage debate since June 26, 2013, when the U.S. Supreme Court declared part of the federal Defense of Marriage Act to be unconstitutional. Since then, every major federal and state court ruling nationwide has gone in favor of gay-marriage proponents.
The Cincinnati hearings are expected to draw such large crowds of journalists and spectators to the Potter Stewart U.S. Courthouse that the clerk of the 6th U.S. Circuit Court of Appeals has set up two overflow courtrooms equipped with piped-in audio of the proceedings.
The Williams Institute at the UCLA School of Law determined that about 18,300 children of same-sex couples, and nearly 52,400 same-sex couples, could be affected by the outcome of the five cases. The group said Ohio has about 19,684 same-sex couples — 54 percent of whom are female — and more than 3,760 same-sex-couple households raising nearly 6,800 children.
The opposing camps are taking very different approaches leading up to the hearings.
Why Marriage Matters Ohio, a coalition of same-sex support groups, is planning a rally on Tuesday evening at Lytle Park in downtown Cincinnati, featuring former Gov. Ted Strickland, other officials and several of the couples represented in the cases.
Sponsors said they want to “ensure that supporters have an opportunity to thank the plaintiffs and their legal teams and celebrate this important milestone in securing the freedom to marry.”
On the day of the hearing, FreedomOhio, another pro-gay-marriage group, will rally on Fountain Square.
Meanwhile, supporters of what they call “traditional marriage” are holding prayer vigils.
“This is a time for prayer, not rallies,” said Phil Burress, head of Citizens for Community Values, the Cincinnati-based group that led the successful 2004 campaign to amend the Ohio Constitution to restrict marriage to one man and one woman. “We’re praying for people caught up in homosexuality. We’re praying for (judges) to do the right thing.”
Burress said people from all four states involved in the cases are contacting churches asking them to hold a prayer vigil through Wednesday. The groups are also asking their supporters to pray on the sidewalk outside the courthouse during the hearings.
Steve Sanders, an associate professional with the Maurer School of Law at Indiana University and an expert on marriage issues, said the cases are happening at the same time that public opinion is quickly changing.
“There is no other issue I can recall where the change in public attitude had happened so rapidly over such a short period of time. The single-most-important factor was the U.S. Supreme Court ruling in the Windsor case (last year).”
While the 6th Circuit judges won’t simply look at all the other recent rulings in favor of same-sex marriage, they will definitely see how other courts have dealt with the issue. Sanders said. “It’s not cheating, it’s natural. They are looking for persuasive authority.”
Most observers are saying the issue will end up in the U.S. Supreme Court. If that happens, Sanders said, he is “quite comfortable” predicting the outcome will be a 5-4 ruling in favor of same-sex marriage, with Justice Anthony Kennedy, a Ronald Reagan appointee, providing the swing vote.
All five cases will be heard by the same three-judge panel, consisting of former Ohio Supreme Court Justice Deborah L. Cook, 62; ex-state Solicitor Jeffrey Sutton, 53; and Martha Craig “Cissy” Daughtrey, 72. Daughtrey was appointed by President Bill Clinton in 1993, while Cook and Sutton were picked by President George W. Bush in 2003.
Of the five cases, two are from Ohio:
• Obergefell, et al v. Himes, et al, is an appeal from a decision by U.S. District Judge Timothy S. Black on Dec. 23, 2013, that required the state of Ohio to recognize same-sex marriages on death certificates issued by the state.
• Henry, et al v. Himes, is an appeal from another Black ruling, this one on April 14, 2014, that ordered the state to recognize valid same-sex marriages legally performed in states that allow such marriages.
The other three cases are from Michigan, Kentucky and Tennessee:
• DeBoer, et al v. Snyder, et al, is an appeal from an order by Judge Bernard A. Friedman on March 21, 2014, that struck down as unconstitutional Michigan’s ban on gay marriage.
• Bourke, et al v. Beshear, et al, stems from an order by Judge John G. Heyburn II on Feb. 12, 2014, declaring that Kentucky law violated the Equal Protection Clause of the 14th Amendment to the U.S. Constitution by refusing to recognize marriages legally performed in other states.
• Tanco, et al v. Haslam, et al, is an appeal from a decision by Judge Aleta A. Trauger ordering Tennessee to recognize marriages of three couples legally married outside the state.
By Alan Johnson - The Columbus Dispatch, Ohio (MCT)
©2014 The Columbus Dispatch (Columbus, Ohio)
Distributed by MCT Information Services