Judges Pepper Attorneys With Questions Over Tennessee’s Gay Marriage Law

The Sixth Circuit heard gay marriage-related cases from all four states in its region: Michigan, Kentucky, Ohio and Tennessee. Credit: Brian Turner via Flickr

The Sixth Circuit Court of Appeals held a lively courtroom Wednesday as the panel heard arguments over whether Tennessee should recognize out-of-state gay marriages. A panel of three judges challenged attorneys on both sides.

Attorney Joe Whalen, acting solicitor general of Tennessee, argued to uphold Tennessee law. He said there’s a fundamental difference between same-sex couples and opposite-sex couples: the ability to procreate. That gives the state the ability to differentiate between them, he said.

But Judge Martha Craig Daughtrey said she didn’t understand why procreation was relevant. If out-of-state gay marriages were recognized, she said, “people would still get married, they would still procreate deliberately or accidentally, life would go on just the way it has gone on.” 

Arguing on behalf of three same-sex couples was attorney Bill Harbison. Judge Jeffrey Sutton pointed out to him that there’s still a federal law that allows states to not recognize gay marriage. That law is Section 2 of DOMA, the Defense of Marriage Act, which is still in effect after the Supreme Court struck down another section of the law last year.

Harbison contended that the federal law would be irrelevant. “If this court rules that under the Constitution, Tennessee has to recognize these marriages, then I don’t think that would be a legitimate issue,” he said.

The judges heard five other gay marriage cases from four other states. It’s the first time the federal appeals court has taken up the issue.

Daughtrey was nominated as a federal judge by President Bill Clinton. Sutton was nominated by President George W. Bush. The third judge on the panel, Deborah Cook, was also nominated by Bush.