DETROIT, MI -- A judge who challenged lawyers on both sides of Michigan's landmark gay marriage case during appeals court arguments Wednesday likely holds the swing vote that will decide the outcome in a majority ruling, an expert said Thursday.
A three-judge appeals panel in Cincinnati heard oral arguments related to six same-sex marriage cases out of Michigan, Tennessee, Ohio and Kentucky on Wednesday in a major court proceeding that gathered hundreds of activists and observers from all four states.
In Michigan's case, brought by a Hazel Park lesbian couple who can't jointly adopt their three children because a voter-approved state law keeps them from marrying, lawyers on either side had 30 minutes each to present arguments, but spent most of their time answering questions from the judges.
"I've argued many many cases over the years... I've learned that you can sometimes get some indication of where the judges are going by their questions. Sometimes you can't," said Robert Sedler, a Wayne State University law professor with expertise in same-sex marriage cases.
U.S. 6th Circuit Appeals Judge Martha Craig Daughtrey hammered state attorney Aaron Lindstrom, demanding an explanation of the difference banning same-sex marriage and prohibiting interracial marriage, which was prevalent in many states until a 1967 U.S. Supreme Court ruling in Loving v. Virginia.
Lindstrom argued that race doesn't play a role in the fundamental definition of marriage.
She also pointed to a lack of demonstrably ill effects of gay marriage in the decade since it first became legal in Massachusetts, saying "It doesn't look like the sky has fallen."
"You have one judge who, in her questioning, made very clear that she believes the ban is unconstitutional," said Sedler.
Judge Deborah L. Cook was relatively quiet during the hearing, but Sedler views her as a strong conservative likely to decide in favor of the state.
It's Judge Jeffrey Sutton who's position is hardest to predict, he said.
Sutton told Lindstom that if the fundamental elements of marriage were to be viewed simply as "love, affection and commitment," the state's case would be difficult to support.
"If you think about marriage just through that lens, it does get difficult to show the difference between one group being eligible and the other not," the judge said.
But Sutton also challenged Carole Stanyar, lawyer for the plaintiffs, asking why Michigan's gay community has turned to the courts rather than the ballot box to legalize same-sex marriage.
"One of the things that I think is odd about the plaintiffs' argument is that it doesn't show much tolerance for democracy sometimes taking a little longer than we like," he said. "... I really think the best way to get respect and dignity is through the democratic process."
Cook and Sutton were appointed to the court by President George W. Bush, and Daughtrey by President Bill Clinton.
"But that's simply not a way of predicting because each judge has his or her own views," Sedler said.
"... I would say that Judge Sutton is probably the swing judge. He's asking questions for both sides."
A ruling could be issued at any time, but it could take months, Sedler said.
"In this case, if I'm right and you're going to have division on the court, it's going to take somewhat longer because they need to have a majority and a dissenting opinion," he said.
"My experience has been that the court renders a decision two to three months after oral arguments."
Meanwhile, the U.S. Supreme Court could decide in October to hear Utah's gay marriage ban case.
"If it does decide and the 6th hasn't rendered its decision yet, it possibly could wait for the Supreme Court," Sedler said.
A Supreme Court decision, if it takes up the Utah case, would be decided by the end of June, Sedler said.
The Wednesday hearings had gay rights advocates marching in the Cincinnati streets around the Potter Stewart U.S. Courthouse while a smaller group of religious activists who oppose same-sex marriage prayed on the sidewalk.
"Often times Christians get stereotyped as not liking gay people, and that's not true. I love all people... But marriage is to be defined as between one man and one woman," said Rev. Scott Mishler of Princeton Pike Church of God in Ohio, who sat on the sidewalk outside the courthouse and prayed after Michigan arguments concluded.
"I think it's clear that men and woman should be married and procreate... But I feel we still have to respect and love one another."
Duncan Richards Bailor of Dayton, Ohio is not gay, but took a Greyhound bus to Cincinnati on Wednesday to march in favor of same-sex marriage rights.
"I want to support other human beings," he said. "If someone does something that doesn't hurt other people, I can't be against it. The struggle of one gorup is the struggle of everyone.