Constitutional Law

6th Circuit mulls gay-marriage recognition in 'unprecedented and marathon hearing'

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In a high-profile hearing on Wednesday, the Cincinnati-based 6th U.S. Circuit Court of Appeals. considered laws denying recognition to gay marriage in Kentucky, Michigan, Ohio and Tennessee.

The Washington Post described the session as an “unprecedented and marathon hearing.” Arguments lasted three hours, the New York Times says. The National Law Journal also had a report and linked to the audio.

“Offering poignant images to the argument,” the Times says, “three lesbian couples in the [Ohio] case, each with a newborn baby, sat in the courtroom gallery for much of the afternoon, their infants alternately cooing and feeding on bottles.”

Two other federal appeals courts have overturned gay-marriage bans in Oklahoma, Utah and Virginia. A contrary ruling by the 6th Circuit “might not be the worst thing for proponents of same-sex marriage,” the Washington Post says, because the circuit split would make a cert grant more likely in the U.S. Supreme Court.

The Post notes that the 6th Circuit has twice as many judges appointed by Republican presidents, and the panel reflected the split. Judges Jeffrey Sutton and Deborah Cook were appointed by former President George W. Bush, while Judge Martha Craig Daughtrey was appointed by former President Clinton.

The Post says Daughtrey appeared ready to side with gay-marriage supporters and Cook with opponents, leaving all eyes on Sutton, whose comments appeared to support both sides. On the one hand, Sutton asked why it wouldn’t be better for gay-rights advocates to advance their cause through the democratic process, rather than the courts. On the other hand, he questioned the states’ justification for banning gay marriage.

The New York Times notes that Kentucky offered a new economic justification for a ban on same-sex marriage during the arguments. The lawyers argued that only heterosexual couples could procreate, and procreation is essential for a strong economy.

Updated Aug. 8 to correct a typographical error.

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