Surrounded by reporters, Brittani Henry-Rogers and Brittni Rogers of Golf Manor cradled their newborn son Jayseon in a third-floor conference room at the downtown Westin Hotel Aug. 6. The three were in good spirits, the baby resting peacefully, despite the three hours they had just spent in the Potter Stewart Courthouse a block away.
That’s where the U.S. Sixth Circuit Court of Appeals was hearing arguments about the constitutionality of gay marriage bans in Ohio, Michigan, Kentucky and Tennessee. At stake is a 2004 amendment to Ohio’s constitution and similar laws in the three other states. The hearings marked the next step of the ongoing battle over gay marriage rights, drawing national interest from the Associated Press, The Washington Post and The New York Times.
Attorneys for the states argued that their bans on gay marriage served the states’ interests and were passed by voters as part of the democratic process. But attorneys for the plaintiffs, including the Rogers and two other couples from Ohio suing for their marriages to be recognized on birth and death certificates, said the bans are unconstitutional and a violation of their civil rights.
Now, the couples wait as the three-judge panel mulls its ruling on the debate. The Sixth Circuit doesn’t have a deadline for handing down its decision, but attorneys said it could take as long as a month or two.
The bans don’t just keep same-sex couples from marrying in the states in question. They also keep those states from recognizing marriages performed in the 19 states where same-sex marriage is legal.
That affects the Rogers. They met in 2008 and decided they’d like to start a family, so Henry-Rogers underwent artificial insemination to become pregnant. The two married in New York in January and Jayseon was born in June.
“Blood couldn’t make us any closer,” Rogers said. “He’s my boy, my pride and joy. Nobody would ever guess that he’s not related to me.”
The Rogers fought in federal court for both of their names to appear on Jayseon’s birth certificate. In April, U.S. District Judge Timothy Black agreed, ordering Ohio to recognize their marriage on the document. The state issued the certificate but appealed Black’s ruling.
That brought the Rogers back to court last week.
If her name isn’t on Jayseon’s birth certificate, Brittni Rogers will have to go to great lengths to prove she has guardianship when signing him up for school, helping him get a driver’s license or traveling out of state with him.
“We just want to be treated as a family, because we are a family,” Henry-Rogers said.
“We both take care of him, so we should both have the right to be on his birth certificate. There’s nothing wrong with having two moms. Who wouldn’t want two moms?”
There are other challenges for same-sex couples seeking to be recognized by Ohio. Last year, James Obergefell of Cincinnati fought for the right to be listed on his husband Jim Arthur’s death certificate. The two flew to Maryland, where same-sex marriage is legal, to wed. Arthur was terminally ill with Lou Gehrig’s disease and passed away a short time later. Obergefell successfully fought to be listed as spouse on Arthur’s death certificate, though Ohio has appealed that decision. The Sixth Circuit also heard his case Aug. 6. After the hearing, Obergefell said he felt “hopeful” that the court would rule against Ohio’s ban.
Other concerned groups joined in a demonstration in support of same-sex marriage rights during the hearings. About 700 people gathered at the courthouse and a block away at Fountain Square during the hearings, nearly all protesting against the bans. Members of the military with same-sex partners were among the most vocal advocates for marriage equality.
“From legally wed to glorified roommates or, worse, nanny status, just by crossing a state line or stepping off the base,” Chris Rowzee summarized during a rally at Fountain Square while the court heard arguments. Rowzee is a member of the American Military Partner Association, which advocates for same-sex partners in the military.
She said even though the military recognizes her marriage, Ohio does not. She said bans keep military personnel and their spouses from being able to make funeral arrangements for each other or seek benefits from Veterans Affairs offices in states with bans, among other difficulties.
So far, challenges to gay marriage bans have been overwhelmingly successful. In 2013, the Supreme Court struck down parts of the federal Defense of Marriage Act that stipulated marriage should be defined as a union between a man and a woman. Since that ruling, federal courts have upheld same-sex couples’ rights to marry 19 times.
In June, judges struck down both Kentucky and Indiana’s anti-same-sex marriage laws. Kentucky’s, a 2004 amendment to the state’s constitution, wasn’t even defended by the Kentucky Attorney General Jack Conway, who refused to argue for the ban on the grounds it encouraged discrimination. Instead, the state hired private attorneys to argue the case. The judge in that case put a stay on his ruling until after the Sixth Circuit’s decision, and the ban remains in effect temporarily. The ruling against Indiana’s ban was quickly overturned on appeal and now the state awaits the decision of higher courts.
In the June case, Kentucky argued that the state has a vital interest in protecting traditional marriage as a means of procreation, which has economic benefits for the state.
“These arguments are not those of serious people,” the judge ruled in that case. Kentucky argued the same reasoning before the Sixth Circuit last week. The Fifth, Seventh and Ninth Circuit courts will hear similar arguments in the next two months from other states seeking to defend their bans.
Whether the Sixth Circuit Court will continue the streak of decisions supporting same-sex marriage rights is uncertain. Two of the three judges on the panel are appointees of former President George W. Bush and have ruled conservatively in many past cases. Circuit Judge Deborah L. Cook is perhaps the most conservative, and among her remarks during the hearings were observations that the plaintiffs knew about Ohio’s marriage ban when they decided to live in the state and that the court shouldn’t undermine a law voters enacted by a wide margin.
Senior Circuit Judge Martha Daughtrey is the sole non-Bush appointee, having been tapped during the Clinton administration. She was the most critical of the states’ cases, especially Ohio’s argument that the ban shouldn’t be revoked because voters put it in place.
Ohio Solicitor General Eric Murphy, who was arguing the case for the state, pointed out that voters could repeal the ban any time they see fit. The argument drew ire from Daughtrey, who pointed out the women’s suffrage movement took nearly eight decades to win a constitutional amendment giving women the right to vote. Daughtrey also made parallels to the civil rights movement during her questions, leaving little doubt about where she stood on the issue.
That leaves the third panel member, Appeals Court Judge Jeffery S. Sutton, as the wildcard. He told same-sex marriage advocates that their cause would be better served by a direct appeal to voters, echoing Ohio’s argument, but also expressed skepticism of states’ interest in protecting marriage as a way to incentivize procreation.
He also observed that more protection of same-sex marriage rights seems to be “the trajectory” of the courts.
Al Gerhardstein, an attorney for the Ohio plaintiffs, refused to predict how the court would rule but said he thought both sides were able to air their arguments fairly. He said Ohio’s argument “runs contrary to every civil rights principle in the nation’s history.”
“What happens is that people get discriminated against and then the courts have to protect them,” he said. “That’s what we’re asking the courts to do here. We’ll see if the court does that or not.” ©