Amber Hunt and A.J. Kmetz

The Cincinnati Enquirer

CINCINNATI — Two Republican-appointed judges weighing the fate of gay marriage in four states didn't give much away as they peppered lawyers on both sides Wednesday with hard-hitting questions.

At the U.S. 6th Circuit Court of Appeals in Cincinnati, three federal appeals judges are deciding the fate of same-sex marriage bans in Michigan, Tennessee, Kentucky and Ohio. In each of these states, a judge has ruled in favor of same-sex marriage, though all rulings have been appealed.

It was especially difficult to read Judge Jeffrey S. Sutton, whose queries fell on both sides of the issue. At one point, he declared that modern-day marriage is about "love, affection and commitment" rather than procreation — poking a hole in one argument against legalizing same-sex marriage.

Then, at another, he criticized gay rights advocates for trying to bypass voters. "Changing hearts and minds happens much more effectively through the Democratic process than through the courts," Sutton said.

Figuring out how Sutton and fellow George W. Bush appointee Judge Deborah L. Cook might vote on the issue could be key to predicting whether voter-approved gay marriage bans will ultimately be allowed to stand in the four states. That's because the questions and comments from the panel's sole Democrat appointee, Judge Martha Craig Daughtrey, seemed more consistently sympathetic to gay rights advocates.

The panel oversaw arguments from lawyers on both sides of the issues in each of the four states. Each state faces slightly different challenges filed by same-sex couples, including the right to adopt children as a couple, to have their names placed on a partner's death certificate, and to have their marriages — performed legally elsewhere — recognized in the states they call home, where gay marriage is illegal.

In Michigan, where voters banned same-sex marriage in 2004, has vowed a vigorous fight to preserve traditional marriage. The state argues that voters already have spoken on the issue of gay marriage and that the will of the voters should not be drowned out by a judge.

In March, U.S. District Judge Bernard Friedman struck down Michigan's ban on gay marriage in a historic ruling that made Michigan the 18th state in the nation to allow gays and lesbians to marry.

In declaring the ban unconstitutional, Friedman provided a moral and legal victory to the two plaintiffs: April DeBoer and Jayne Rowse, who fought for the right to marry and adopt each other's special needs children.

Two of the six cases being weighed hailed from Ohio, both of which centered on whether the state has to recognize same-sex marriages performed legally in other states. In the first, same-sex couples sued for the right to be listed as spouses on their deceased partners' Ohio death certificates. In the second, couples sued to have both partners' names on birth certificates of their children.

As if to underscore the latter, three newborns cooed and gurgled from the audience during the arguments. The infants were born via artificial insemination to three same-sex couples represented in the Ohio case.

Al Gerhardstein, who represents the Ohio plaintiffs, said it was humiliating and harmful that those three babies weren't allowed to have both parents' names listed on their birth certificates.

"Those children deserve to have two parents, and they deserve it now," he said.

The courtroom in the Potter Stewart Federal Courthouse was packed with spectators and journalists. Some had to sit in audio-only overflow rooms.

Outside the Downtown courthouse, rallies began Tuesday night drawing an estimated 700 gay rights advocates, and hundreds more were outside — including about 40 anti-gay marriage proponents gathered in prayer — as the judges took the bench.

"We're hoping that the judges uphold the law from the four states rather than ruling according to personal agenda," said Paula Westwood, executive director of Right to Life of Greater Cincinnati.

Jane Hoffman of the Pregnancy Center East said that while she has "many dear friends who are homosexuals," she opposes same-sex marriage. "Marriage is what marriage is ... we can't redefine it," she said.

A block to the east of the court, more than 20 same-sex couples participated in a commitment ceremony at Fountain Square as the hearing was underway.

"This is just one more step, but it's a big step," said Brother Michael Childs of Jubilee Cincinnati, a church that supports marriage equality, as about 300 people gathered for a pro-gay rally. "We feel this is not just an issue of rights but of civil rights."

Callie Wright, a lesbian, said she was at the rally because "when you marginalize anyone, you make it hard for them to speak out about other things."

The 6th Circuit panel did not make any rulings Wednesday. But its eventual decisions could head to the U.S. Supreme Court. Two other appeals courts already have issued decisions in gay marriage case and arguments are scheduled in a fourth for later this month.

"I don't think anyone is under the illusion that this is the end of the road," Sutton said at the conclusion of Wednesday's arguments. "So we'll do our best with it, and do it quickly."

Among the four states arguing Wednesday, Kentucky stood out because Attorney General Jack Conway refused to defend his state's ban, saying that doing so would require him to defend discrimination. Gov. Steve Beshear — like Conway, a Democrat — hired outside counsel to handle the case for the state. The other three states were represented by delegates from their attorneys general offices.

Kentucky's defense of the law centers on the premise that opposite-sex marriage promotes procreation, and procreation provides an economic benefit to the state. Attorneys for the other states made similar arguments, but at least one of the appeals court judges wasn't buying it Wednesday.

"What's the rational basis for excluding everyone else?" Daughtrey asked. "It doesn't cut down on the procreation of children just because it's two people of the same sex marrying."

In Tennessee, a federal judge in March ordered state officials there to recognize the marriages of three same-sex couples while they challenge the state's marriage ban. The judge ruled that they should be respected as married as the lawsuit proceeds. The state of Tennessee appealed to the 6th Circuit.

Gay marriage is now legal in 19 states and the District of Columbia. The states are Oregon, Pennsylvania, Massachusetts, California, Connecticut, Iowa, New Hampshire, Vermont, New York, Maine, Maryland, Washington, Delaware, Hawaii, Minnesota, New Jersey, Rhode Island, New Mexico and Illinois.

Every legal challenge since the U.S. Supreme Court last June struck down part of the federal Defense of Marriage Act, which defined marriage as between a man and a woman, has chipped away at gay marriage bans nationwide.

"The trajectory favors the plaintiffs," Sutton said.

Eric Murphy, Ohio's state solicitor, agreed, saying that "a victory that comes through the political process is the truer victory."

But Daughtrey said the democratic process might be too slow. While questioning Murphy, she pointed to the suffragist movement that fought for nearly a century to get women the right to vote.

"If I told you it took 78 years crossing the desert back and forth and back and forth, would you be surprised?" Daughtrey asked of the women's efforts, which ultimately failed: The issue was eventually laid to rest by a constitutional amendment. "The point is you want to do this state by state ... and that doesn't always work."

Then, in a moment of rare levity, she added: "I just thought you might want to know that in case you're ever on Jeopardy."

Contributing: Amanda VanBenschoten, The Cincinnati Enquirer; Tresa Baldas, Detroit Free Press