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The three judges at the 6th Circuit set to hear gay marriage arguments Wednesday are Jeffrey S. Sutton and Judge Deborah L. Cook, both George W. Bush nominees, and Martha Craig Daughtrey, a Clinton nominee.
Among them, Sutton is considered to be the least predictable.
In 2011, he shocked Republicans when he became the deciding vote in a 6th Circuit ruling that upheld the Obama administration’s health care overhaul.
“This is the kind of thing where you could see the conservative with a libertarian bent coming out in favor of gay marriage, but who knows?” said Mark Tushnet, a constitutional law professor at Harvard. “Having done Obamacare and maybe screwed his own chances for the Supreme Court, Sutton may feel liberated to do what he thinks is the right thing and go for marriage equality, or he may try to rehabilitate himself and go against it.”
Carl Tobias, a law professor at the University of Richmond, said he could see the 6th ruling in either direction, considering Sutton’s unpredictability.
Still, opponents of gay marriage likely could rely on the 5th Circuit to give them a win. The court is heavily conservative, and the odds of a majority or full panel of Republican nominees is much likelier there.
Plaintiffs in the 6th Circuit case include a Cincinnati man who wants his dead husband listed as married on his death certificate so they can be buried next to each other in a family-only plot, and a Knoxville, Tennessee, couple who say they want to both be listed on their newborn daughter’s birth certificate.
Gay marriage supporters, including former Ohio Gov. Ted Strickland, are holding a rally Tuesday at a downtown Cincinnati park. More rallies by supporters and opponents are expected outside the courthouse Wednesday.
Two federal appeals courts already have ruled in favor of gay marriage in split decisions, one in Denver in June and another in Richmond, Virginia, last week. On Tuesday, Utah formally filed its appeal of the June ruling in Denver’s 10th Circuit, asking the U.S. Supreme Court to take up the case and uphold the state’s ban.
The burst of action across the nation on gay marriage was spurred by a Supreme Court decision last year that struck down part of the Clinton-era federal Defense of Marriage Act but stopped short of forcing states to legalize or recognize gay marriage.
Since then, supporters of gay marriage have won more than 20 legal decisions declaring statewide gay marriage bans unconstitutional.
Gay marriage is legal in 19 states and the District of Columbia.
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