CINCINNATI – Same-sex couples in Tennessee and three other states started the countdown to a ruling that will determine the legal legitimacy of their marriages, a ruling some expect from the Sixth Circuit Court of Appeals within weeks.
One by one on Wednesday afternoon, attorneys defending their states' bans and those representing plaintiff couples made their cases — many revolving around the precedent of the Supreme Court in 1967 forcing states to recognize different-race marriages and last year's Defense of Marriage Act ruling granting federal recognition of same-sex marriages.
The two sides in Tennessee's appeal went last and mostly ended up arguing one point: Whether the state's ban on that recognition makes life better for kids.
The state of Tennessee says yes, and Acting Solicitor General Joe Whalen emphasized the point time and again in his 15 minutes before the three-judge panel. He deftly deflected questioning from Judge Martha Craig Daughtrey, a former member of the Tennessee Supreme Court, who suggested that opposite-sex couples were bearing children before the 1996 state law and 2006 state constitutional amendment that banned recognition and still do.
That's looking at the question the wrong way, Whalen countered. "No one can deny that marriage has other aspects ... but they are not the reasons the Supreme Court identified it as a fundamental right."
If California and New York want to exert their sovereign authority to recognize same-sex marriage, that's fine, Whalen said. This is about Tennessee.
Sophy Jesty sat motionless in the audience. She and two other plaintiff couples are contending the state caused them harm by failing to recognize marriages they entered elsewhere before moving to Tennessee.
She married Valeria Tanco in New York, and her wife became the namesake for Tennessee's landmark Tanco v. Haslam recognition case. They moved to Knoxville to teach at the University of Tennessee's veterinary school, and their daughter was born in the one-month span between March and April when a ruling by U.S. District Judge Aleta Trauger in Nashville forced Tennessee to recognize the union.
Jesty is listed on the birth certificate, but her rights to the child were severed by the appellate court's stay pending Tennessee's appeal.
"The question of procreation is silly when there are so many same-sex couples having children as well," she said after the hearing. "Why not extend marriage rights to them? There were three babies in this row."
The broadest case argued Wednesday is from Michigan — flatly seeking to strike down that state's ban on same-sex marriage — and the judges took it first. It set the tone for the rest: Daughtrey questioning how the recognition harms opposite-sex couples and comparing the case to other social-justice issues, Judge Jeffrey S. Sutton suggesting the issue would best be decided by voters state-by-state.
Same-sex marriage is legal in 19 states and in Washington, D.C.
A pair of Ohio cases seeks recognition and cites the purpose of accurate birth and death certificates. A pair of Kentucky cases comes from couples both seeking to marry and seeking recognition for out-of-state marriages.
In the end, the appeals court isn't there to come up with anything new, said Belmont University Law School Dean Alberto Gonzales, the former U.S. attorney general under George W. Bush. Gonzales recommended Sutton's appointment to the appellate court.
"They are bound by what the U.S. Supreme Court has said about this issue. What has Congress said? What has the Sixth Circuit said?" said Gonzales, who also recommended the third judge on Wednesday's panel, Deborah L. Cook.
President Bill Clinton appointed Daughtrey.
Whalen said after the hearing he had no additional comment. Nashville attorney Bill Harbison argued the case for Tennessee's plaintiffs.
Abby Rubenfeld, another Nashville attorney in the case, said she was confident they made their argument that procreation has nothing to do with recognizing same-sex marriages.
Matthew Mansell and Johno Espejo, Franklin plaintiffs in Tennessee's case who are raising two adopted children, said the trip and the hours spent in the courtroom were worth it.
"I wanted the court to realize we are committed to this and how important it is to us," Mansell said.
There are several potential outcomes in the case, but Gonzales said it's more likely to go to the U.S. Supreme Court if the appellate judges don't rule for recognition. Their peers in the fourth and 10th circuits recently ruled in favor of same-sex marriage recognition, and the Supreme Court typically gets involved when appellate courts disagree.
An East Tennessee couple will be among six who will go before a court of appeals, the latest in a legal showdown in the gay-marriage debate.
On Wednesday, the historic civil rights case that centers on the right to marry heads to the U.S. 6th Circuit Court of Appeals in Cincinnati. Three federal appeals judges will decide the fate of the same-sex marriage bans in Tennessee, Michigan, Tennessee, Kentucky and Ohio. In each of these states, a judge has ruled in favor of same-sex marriage, but all rulings have been appealed, reported the Detroit Free Press. The hearing's arguments are expected to take about three hours.
More than 75 lawsuits challenging gay marriage bans are pending in 32 states. Since December, courts have ruled in favor of same-sex marriage in 29 cases. Those victories are now on appeal.
In February, a federal judge ruled that Kentucky must recognize same-sex marriages legally performed in other states. After the ruling, Kentucky's attorney general said he wouldn't defend the state's ban on same-sex marriage, but the governor stepped in and filed an appeal.
In Tennessee, a federal judge in March ordered state officials to recognize the marriages of three same-sex couples, a ruling that challenged the state's marriage ban. The state of Tennessee then appealed to the 6th Circuit.
Valeria Tanco and Sophy Jesty of Knoxville is among three couples from Tennessee in Cincinnati fighting the state's appeal.
Attorney Regina Lambert represents the group and said whatever happens, this case will likely go before the U.S. Supreme Court.
Matthew Lyon, a professor at Lincoln Memorial University Duncan School of Law, said the federal decision in June 2013 is the reason same-sex advocates are now challenging marriage laws at the state level.
"The majority held the federal Defense of Marriage Act was unconstitutional, specifically that the federal government was required to recognize same sex marriages," said Lyon. "So the argument goes if the federal government in DOMA can't violate the constitution, nor can the state violate the federal constitution."
Contributing: Tresa Baldas, Detroit Free Press