As we reported two weeks ago, the Sixth Circuit is gearing up to hear no less than five appeals tomorrow in the battle over same-sex marriage. The Court is expecting such a large crowd that it has issued a notice to the public and the media concerning the oral arguments and has designated two overflow courtrooms where live audio from the oral arguments will be streamed. The three-judge panel hearing the appeals consists of Judges Martha Craig Daughtrey of Tennessee, Jeffrey Sutton of Columbus, and Deborah Cook of Akron.
Not surprisingly, the same-sex marriage appeals before the Sixth Circuit have attracted significant national media attention. Court observers and political pundits are all trying to predict how the three-judge panel will rule, and they have turned to our own Pierre Bergeron, who has argued before all three judges on the panel, for his unique insight on the Court.
Bergeron rightly cautions that it is difficult to predict the outcome of the same-sex marriage appeals prior to oral argument. “It would be hazardous to predict what they’re going to do,” Pierre explained in Sunday’s Cleveland Plain Dealer. “All three are generally very well prepared, and not prone to hide the ball as to their perspectives on cases. So I would think we’ll get a sense of their leanings during the oral arguments,” Pierre said.
And even after oral argument, it likely will remain difficult to predict how the panel will rule. The judge’s backgrounds alone will not carry the day. As Pierre explained Sunday in the Cincinnati Enquirer, “That’s too simplistic of an analysis. What you see is courts across the country, regardless of ideological perspective, striking down the gay marriage ban. Certainly there’s an element of liberal-conservative to it, but I don’t think that’s going to be the driver at the end of the day.” As Pierre further explained in the Louisville Courier-Journal recently, “They are not going to do something because it is either the liberal or conservative result.”
As someone who also has argued cases before two of the three judges, and has followed the Court for years, I can echo Pierre’s analysis regarding the uncertainty over how the panel will rule. One thing is clear, though: The national media is shining a bright spotlight on the same-sex marriage appeals before the Sixth Circuit. We’ll continue to monitor all developments with these landmark cases.