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Judges weigh gay marriage cases from 4 states

By Brett Barrouquere

Associated Press

Published: Thursday, Aug. 7 2014 9:35 a.m. MDT

Hundreds of gay marriage supporters rally on Fountain Square, Wednesday, Aug. 6, 2014, in Cincinnati.

Al Behrman, Associated Press

Enlarge photo»

CINCINNATI — Judges Martha Craig Daughtrey and Deborah L. Cook made it clear fairly quickly they stood on opposite sides of the same-sex marriage debate. Their colleague, Judge Jeffrey S. Sutton, however, gave fewer hints as to where he may come down when the U.S. 6th Circuit Court of Appeals decides the fate of gay marriage bans in four states.

The cases heard Wednesday pit states' rights and conservative values against what plaintiffs' attorneys say is a fundamental right to marry under the U.S. Constitution.

If the 6th Circuit decides against gay marriage, it would create a divide among federal appeals courts and put pressure on the U.S. Supreme Court to settle the issue during its 2015 session. The appeals panel did not indicate when it would rule.

Daughtrey's comments and questions Wednesday displayed bewilderment at arguments for upholding the laws and Cook several times stepped in to make the point for the states' more clearly than their attorneys. Sutton showed skepticism as gay couples from Michigan, Ohio, Kentucky and Tennessee pushed to require their states to recognize their marriages elsewhere or allow them to be married in their home states. He also repeatedly pressed attorneys for the states on the logic behind their arguments.

Attorneys for the same-sex couples focused heavily on two main points: the discriminatory nature of the laws and the slow pace and expense of changing state constitutions as well as the federal Constitution.

Laura Landenwich, a Louisville, Kentucky, attorney representing same-sex couples from that state, said sometimes democracy doesn't keep up with the will of the public.

"There is a limit to the democratic process," Landenwich said.

Sutton's questions to the plaintiffs focused heavily on why they were using the court system rather than allowing democracy to work its will in the states.

"I would have thought the best way to get respect and dignity is through the democratic process," Sutton said. "Nothing happens as quickly as we'd like it. ... I'm not 100 percent sure it's the better route for the gay rights community."

Attorneys for the four states zeroed in on the fact that voters enacted the laws being questioned and the idea that heterosexual couples can procreate and bring children into stable environments.

Michigan's solicitor general, Aaron Lindstrom, argued that any change in the state's ban on same-sex marriage should come through the political process and that the laws aren't discriminatory.

"The most basic right we have as a people is to decide public policy questions on our own," he said.

Along with the attorneys, Sutton sparred with Daughtrey, who repeatedly expressed confusion at the arguments forwarded by attorneys for the four states.

"Can you explain the state's formulation of a basis for the law?" she asked Bill Harbison, the attorney for same-sex couples in Tennessee.

"No I can't," Harbison responded.

At one point, Daughtrey, an appointee of President Bill Clinton in 1993, told Sutton that the briefs filed by Harbison "contained great insight."

"You should read it," Daughtrey said.

"Great, We'll try to do it before we issue an opinion," Sutton responded as laughter rippled through the courtroom.

Sutton, appointed to the position by President George W. Bush in 2003, is known for being unpredictable, shocking Republicans in 2011 when he became the deciding vote in a 6th Circuit ruling that upheld President Barack Obama's health care law.

Cook, also a Bush appointee in 2003, at times spoke up for the states defending the laws.

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