Two federal appeals courts have ruled that states may not ban same-sex marriage. Now, the more conservative U.S. Court of Appeals for the 6th Circuit in Cincinnati may decide that states have the prerogative of defining marriage as between man and women, The Washington Post
If the appellate courts come to opposite conclusions — other appeals courts are expected to hear similar challenges — the U.S. Supreme Court will come under pressure to intervene and make a definitive ruling.
The legal dispute is whether the 2013 Supreme Court decision, U.S. v. Windsor, requiring the federal government to recognize same-sex marriages performed in states where they are legal, means that same-sex marriage is a fundamental right and that more traditional states may not ban such unions.
The Cincinnati panel is composed of judges Jeffrey Sutton, Deborah Cook, and Martha Craig Daughtrey.
During oral argument, Sutton queried lawyers for same-sex couples as to why they preferred to put their hopes in five votes of the Supreme Court rather than capturing the "hearts and minds" of their fellow Americans, according to the Post.
Their lawyer, Alphonse Gerhardstein, replied that fundamental rights should not hinge on popular approval, the Post reported.
Sutton and Cook were nominated by president George W. Bush. Daughtrey was nominated by President Bill Clinton. Daughtrey made it clear she supports gay marriage, according to the Post. Cook appeared to side with the states and opponents of single-sex marriage.
Sutton's comments left it unclear which way he would go, the newspaper reported. He is known for his judicially conservative temperament and formerly was a clerk for Supreme Court Justice Antonin Scalia. Sutton disappointed conservatives with his ruling that the Affordable Care Act was constitutional.
Regarding the present case, Sutton said it boils down to whether states were empowered to define marriage. He noted that the Supreme Court's message in Windsor, while ambiguous, seemed to lean toward the protection of gay rights, the Post reported.
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