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Cincinnati same-sex marriage cases lead U.S. Supreme Court hearing

Dozens of attorneys representing four states, and the lawsuits against them, have converged in Washington D.C. to argue whether same-sex marriage should be allowed in two of those states and whether they should be recognized in the other two.

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Credit Tana Weingartner / WVXU
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WVXU
Lesleigh Dean and Kim Mohammed relax on Fountain Square during a rally in favor of same-sex marriage.

It's been five months since The Sixth U.S. Circuit Court of Appeals upheld recognition bans in Ohio and Tennessee, and same-sex marriage bans in Kentucky and Michigan. This reversed earlier rulings, including one in Ohio that declared the recognition bans "facially unconstitutional and unenforceable under any circumstances."

"I think Cincinnati should be proud that the case from our community may well determine this landmark issue of the right of same-sex couples to marry." -Al Gerhardstein

There are two questions before the U.S. Supreme Court Tuesday. For Ohio and Tennessee, it comes down to: "Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?" And Michigan and Kentucky want to know: "Does the Fourteenth Amendment require a state to license same-sex couples to marry?"

Attorney Al Gerhardstein filed two of the cases in Cincinnati federal court that are now before the U.S. Supreme Court. He says, "We are very hopeful the Supreme Court will decide both the states must permit same-sex couples to marry. And when they are married, they should recognize their marriages because the consequences of the other decision are disastrous."

Read the Ohio petitioners brief for James Obergefell v. Richard Hodges and Brittani Henry v. Richard Hodges here. It argues:

  • Ohio's recognition bans strip married same-sex spouses and their children of hundreds of legal and financial protections.
  • Ohio's refusal to recognize existing marriages of same-sex couples is subject to heightened scrutiny under the due process clause.
  • Ohio's recognition bans trigger heightened equal protection scrutiny because they discriminate based on sexual orientation and sex.

Read the Ohio respondents brief here. It argues:

  • Ohio has always followed the traditional definition of marriage as between a man and a woman.
  • Ohioans twice voted to retain that definition.
  • The Sixth Circuit held that the Constitution leaves the question of same-sex marriage to democracy.

Kentucky's two cases:

  • Bourke, et al v. Beshear - four couples are suing for their out-of-state marriages to be recognized.
  • Love, et al v. Beshear - this case seeks the right for same-sex couples to marry in Kentucky.

The other cases before The U.S. Supreme Court:

  • Tanco, et al v. Haslam - four couples in Tennessee are suing for their out-of-state marriages to be recognized.
  • DeBoer, et al v. Snyder - seeks the right for same-sex couples to marry in Michigan.

Each side has 90 minutes to argue the right to marry and 60 minutes to argue the marriage recognition question. Gerhardstein anticipates the court will rule by the end of June, before its summer break.