Michigan plaintiffs April DeBoer, left, and Jayne Rowse coming out of the Sixth Circuit Court of Appeal in Cincinnati on Wednesday . (Lauren Abdel-Razzaq / The Detroit News)
Cincinnati — Members of a three-judge federal panel hearing arguments Wednesday over the legality of Michigan’s same-sex marriage ban appeared divided over the fate of the measure.
Judge Martha Daughtrey signaled her likely support for overturning the ban in tough questioning of Michigan’s solicitor general. But Judge Deborah Cook appeared sympathetic to the state in her questions during the hearing before the 6th Circuit Court of Appeals.
The third judge, Jeffrey Sutton, expressed skepticism about whether the court was the right venue for deciding the issue, and whether now is the right time.
“I would have thought the best way to get respect and dignity is through the democratic process,” said Sutton, who asked the most questions among the three judges. “Nothing happens as quickly as we’d like it.”
But Sutton, appointed by President George W. Bush, also seemed at least somewhat sympathetic to same-sex marriage advocates.
“Maybe the original argument for marriage was about procreation, but maybe the modern interpretation of marriage is more about love, affection and commitment,” he said.
Cook, also a Bush appointee, asked the fewest questions during the 3˝-hour presentation focusing on whether states can restrict marriage to a man and a woman.
Besides hearing arguments over Michigan’s 2004 voter-approved ban, the judges also heard arguments for and against same-sex marriage bans in two cases from Kentucky, two from Ohio and one from Tennessee.
The Michigan case was the first presented to the judges. Each side was given 30 minutes to make its points and the state’s solicitor general, Aaron Lindstrom, was given an additional 15 minutes at the end for rebuttal.
The state took the case to the appeals panel after U.S. District Judge Bernard Friedman struck down Michigan’s ban in March.
Daughtrey, appointed by President Bill Clinton, was clear that she doesn’t see anything wrong with extending rights to same-sex parents.
“What is the rational basis for excluding everyone else?” she asked Lindstrom. “It doesn’t interfere with the procreation of opposite-sex couples.”
Lindstrom, who argued on behalf of Gov. Rick Snyder and Attorney General Bill Schuette, told the judges “marriage is linked to children and bringing new children into society.”
“It is more likely that a child will have benefits from having a mother and father,” he said.
He also said that because state voters approved a constitutional amendment defining marriage as between one man and one woman, overturning that ban would negate the democratic process.
The DeBoer v. Snyder case stems from a challenge by Hazel Park nurses April DeBoer and Jayne Rowse to Michigan’s constitutional marriage ban because they want to legally marry and adopt each other’s children.
Their attorney, Carole Stanyar, argued the ban on same-sex marriage is unconstitutional.
“The Michigan marriage amendment gutted democracy in Michigan,” Stanyar told the judges. “These bans humiliate children. These bans bring shame to these children.”
The arguments for all of the state cases were similar, although each case presented a different set of circumstances.
One of the Ohio cases had to do with same-sex parents of children being able to get both of their names listed as “birth parent” on the birth certificate; the other Ohio case involves a man whose partner died, but the state would not allow his death certificate to say he was married.
The Kentucky and Tennessee cases center on couples who were married outside of the state and want recognition of their marriages in the states where they live.
Same-sex marriagesare legal in 19 states, and the District of Columbia.
Michigan’s case was the only one heard Wednesday thatwent to a full trial, which means the evidence, testimony and Friedman’s opinion were available to the three-judge panel.
At the end of the marathon session, Sutton told those in attendance the court would work to get a decision quickly because whatever the judges decide, the cases will be appealed to the U.S. Supreme Court.
“I don’t think anyone is under the impression that this is the end of the road,” he said.
When the court adjourned, the Michigan couple and their attorneys stood on the front steps reflecting on how far things have come for them.
“It’s been overwhelming. There’s been a lot of tears shed,” said DeBoer. “But in the long run, we are here for a reason and that is our kids.”