Yesterday, the Sixth Circuit Court of Appeals heard oral arguments in six cases from four states, all concerning same-sex marriage. Kentucky's cases, Love v. Beshear and Bourke v. Beshear, were among them. I, along with Dan Canon, Laura Landenwich, Shannon Fauver, and Dawn Elliott, represent the plaintiffs in those cases. Our clients won at the district court level below, first in Bourke in February (concerning the recognition of same-sex marriages from other jurisdictions), then in Love in July (concerning the issuance of licenses in Kentucky itself). Governor Steve Beshear appealed those cases to the Sixth Circuit.
We anticipated a large media presence. When we arrived at around 11:30, dozens of reporters were already set up outside the court entrance. Laura, our oral arguer, needed to make final preparations for her argument, so we dodged everyone and headed upstairs.
Inside the courtroom, most of the attorneys and plaintiffs from the other cases were already present. We were able to mingle with our counterparts from the Ohio, Michigan, and Tennessee cases and reassure each other that our preparation was sufficient for the big day. Preparing for an appellate oral argument is much like cramming for a major test. No matter how well you know your case, you must be ready for any possible question from the judges during arguments, so preparation must be extensive and meticulous.
Generally, cases in the federal Circuit Courts of Appeals are heard by a panel of three judges. The members of those panels are usually chosen at random (though not totally random in some Circuits). The Sixth Circuit panel for the same-sex marriage cases consists of Senior Judge Martha Craig Daughtrey, Judge Jeffrey Sutton, and Judge Deborah Cook.
The oral arguments were scheduled as such: the Michigan case, DeBoer v. Snyder, was heard first, with the attorney for the state and the attorney for the plaintiff each getting half an hour to speak. Then, the Ohio cases of Obergefell v. Himes and Henry v. Himes went next, again with half an hour for each side. Third, Kentucky was up, with Beshear's attorney Leigh Latherow going first for fifteen minutes followed by Laura for our clients. Last was the Tennessee case of Tanco v. Haslam, with each side getting fifteen minutes.
During oral arguments, each attorney stands at a podium in front of the panel and is peppered with questions. Prepared speeches are largely tossed aside as the panel continuously interrupts each attorney, demanding answers to whatever questions they may have.
Oral arguments in each case can be heard here.
The proceedings began with the attorney for Michigan, who was defending their ban on same sex marriage and challenging the decision of the trial court below. The attorney for the plaintiffs in Michigan went next, with a short rebuttal from Michigan's attorney to finish up. This was the order of argument for each case.
Judge Sutton presided over the court. Appointed by George W. Bush and considered a consistent conservative, Judge Sutton had a very calm, patient demeanor and asked all attorneys pointed questions. He was primarily concerned with issues of federalism, specifically the role courts should play when there appears to already be a momentum toward equality in most states. Why can't the states just legalize same-sex marriage on their own over time, he asked each attorney challenging the bans.
Judge Daughtrey reserved her questions primarily for the state proponents of same-sex marriage bans, and reacted with incredulity at some of the responses she received. She was particularly bothered by arguments that the legislative process could be trusted over time to extend rights to same-sex couples. She asked Ohio's attorney if he knew how long women had struggled for the right to vote before it was eventually granted everywhere by the 19th Amendment. The attorney didn't know the answer, but Judge Daughtrey did: nearly a century of local and state efforts were futile before voting rights were finally achieved. This observation seemed to be directed to Judge Sutton as much as it was directed to Ohio's counsel.
In the Kentucky arguments, Judge Daughtrey was particularly unimpressed by the state's contention that it must exclude same-sex couples from marriage in order to ensure the survival of the human race. She called the argument "circular," and became frustrated when she did not receive sufficient answers to her questions on that topic.
Judge Cook remained almost entirely silent throughout the proceedings.
Overall, I was very impressed by the performance of all my fellow plaintiffs' attorneys. In our case, Laura was very well prepared and it showed when she ably fielded Judge Sutton's questions about federalism and the appropriate standard of scrutiny which the court should apply to Kentucky's laws. And at the end of the day, Laura took a little time to talk to the press about her efforts.
With arguments over and all the briefing complete, it is now up to the Court to issue its decision. But it's impossible to predict how the Sixth Circuit will rule in these cases. Judge Daughtrey, a Clinton appointee, seemed clearly in favor of same-sex marriage. Judge Cook was too quiet to discern her position, but she is considered to be very conservative. And Judge Sutton, predicted widely as the swing vote in this case, posed interesting questions to attorneys for both sides, going to great lengths, from my perspective, not to reveal his hand.
When a decision will be made is unknown. The Fourth and Tenth Circuits each took about two months to issue three rulings in favor of same-sex marriage. Judge Sutton said the Sixth Circuit will rule "soon," but no sure date has been established.