The federal appeals court in Cincinnati has upheld anti-gay marriage laws in Ohio and three other states.
In a break with other circuit court decisions, the 6th U.S. Circuit Court of Appeals in Cincinnati decided two-to-one to uphold lower court rulings against same-sex marriage in Ohio, Michigan, Kentucky and Tennessee.
Many are speculating this could lead the U.S. Supreme Court to take up the issue. And Ohio plaintiffs attorney Al Gerhardstein says he and his clients do intend to ask the Court to do just that.
"We will be applying for cert to the U.S. Supreme Court," says Gerhardstein. We think the two judges that ruled in the majority simply got it wrong. And we very much are eager to take this up to the Supreme Court.”
Gerhardstein says he intends to act promptly but doesn't want to rush. He says they'll take the time to analyze the ruling and put together an argument to take to Washington.
At issue in Ohio was whether all same-sex couples have the right to be listed on the birth certificate and death certificate.
In Kentucky appeals judges had to decide whether to grant same-sex couples the right to marry and whether out of state marriages should be recognized.
The Tennessee case asked for out of state recognition.
In Michigan same-sex couples are fighting for the right to marry in their state.
On August 6, 2014 the court heard the most marriage cases (6) that any federal circuit court has heard in a single day. It was the fourth argument to be heard by a federal circuit court since the Supreme Court's decision in the summer of 2013 struck down the Defense of Marriage Act.
What the judges said August 6:
(Judge Martha Daughtrey)
- No reason to fuss about the legislature, the courts have already decided
- In states where same sex marriage is allowed the sky hasn't fallen yet
- Took 78 years for women to get the right to vote. Convincing the legislature didn't work
- What is the rational basis for excluding people?
(Judge Jeffrey Sutton)
- Changing hearts and minds in the community is better
- Best way to get dignity is through the democratic process
- An initiative is just as effective as a court decision
Judge Deborah Cook was mostly quiet during the nearly three hours it took for the arguments.
Kent Ostrander, the executive director of the Family Foundation, spearheaded the 2004 constitutional amendment in Ohio that banned same-sex marriage. He called August 6 a historic day in marriage policy. "I would suggest that the people have the right to determine what their state policies are....to have one judge or even a panel of three judges just throw that out is just a violation of our core values as American people."
It's been a long time coming for Cincinnati attorney Al Gerhardstein who filed a lawsuit on behalf of Jim Obergafell and his dying partner John Arthur in July 2013. That couple flew to Maryland to get married and when Arthur died Obergafell was allowed to be listed on the death certificate.
Gerhardstein also represented four couples who wanted both spouses listed on their kids' birth certificates. Three of the couples live in Cincinnati and one is in New York. A federal judge granted them the right to do that. In August, just after the appeal, Brittni Rogers and her wife were beaming as they pulled out their newborn's birth certificate with the names of both parents-something they hope all same sex couples with kids can do.
Analysts say it's very likely the Supreme Court ultimately will settle the question of same-sex marriage.
Separate from this case there is another federal court case in Cincinnati involving six couples who want the right to get married in Ohio. That case was put on hold until there was a decision in these cases.