Gay marriage supporters march from a rally on Fountain Square to the Potter Stewart United States Courthouse, Wednesday, Aug. 6, 2014, in Cincinnati. Three judges of the 6th U.S. Circuit Court of Appeals in Cincinnati are set to hear arguments Wednesday in six gay marriage fights from four states, Kentucky, Michigan, Ohio and Tennessee.
CINCINNATI, OHIO -- U.S. 6th Circuit Appeals Judge Jeffrey Sutton on Wednesday questioned attorney Carole Stanyar on why Michigan's gay community has turned to the courts rather than the ballot box to legalize same-sex marriage.
The questions came during oral arguments in Michigan's appeal of a March court ruling that declared the state's voter-approved gay marriage ban unconstitutional.
"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," Sutton said during the hearing at the Potter Stewart U.S. Courthouse in Cincinnati on Wednesday afternoon.
"... I really think the best way to get respect and dignity is through the democratic process."
Stanyar and a state attorney were each given 30 minutes to make their arguments and answer questions in an oversized en banc hearing room packed with journalists and spectators, who also filled two packed overflow rooms where an audio feed was provided.
Gay rights advocates marched in the street around the courthouse during the hearing while a smaller group of religious activists who oppose same-sex marriage prayed on the sidewalk.
The court was also scheduled to hear oral arguments in five other same-sex marriage cases out of Ohio, Kentucky and Tennessee on Wednesday.
Stanyar pointed out that moving to repeal the voter-approved ban would start with collection of thousands of signatures amounting to 10 percent of the number of voters who cast ballots in the last general election.
"It's very cost prohibitive," Stanyar said.
"Isn't it worth the expense?" the judge countered." It's not obvious to me that this is the best route."
"I'm not at all optimistic that we could get that in Michigan," Stanyar responded.
"... We are the flyover states. We are Michigan, Tennessee, Kentucky and Ohio and nothing has been happening to help gay and lesbian people. In my state, nothing is happening to help gay people... The wait-and-see approach is not itself a rational basis."
She sought to undermine the state's argument that voters had a rational basis to enact the ban in 2004, based on the idea that "in general, it's better that children have a mother and a father."
"Michigan allows single people to adopt children," Stanyar said. "People can marry without having children and people can have children without being married."
She spoke in detail about the fate of children who can't be jointly adopted by same-sex couples in Michigan, before being cut off by Sutton, who persistently challenged both her and state attorney Aaron Lindstrom.
"These arguments seem really powerful... but do they suffice if it's a rational-basis review?" he asked.
"Courts cannot require pro-creation as a precondition to a constitutional right," Stanyar said. "... This court doesn't have the luxury of dodging a constitutional challenge."
Michigan's case was brought by April DeBoer and Jayne Rowse, a Hazel Park lesbian couple who sued the state because they can't jointly adopt their three children without a legal marriage in Michigan.
U.S. District Judge Bernard Friedman ruled in their favor in March, finding the voter-approved ban to be a violation of constitutional equal protection and due process rights after a nine-day trial in Detroit.
Michigan Attorney General Bill Schuette in his appeal brief argued that overturning voter-approved bans is "demeaning to the democratic process," citing a U.S. Supreme Court ruling on Michigan's affirmative action ban that was handed down earlier this year.
Lindstrom echoed Sutton's questions on democratic process during rebuttal of Stanyar's argument.
"Our society has a mechanism for change," he said. "The right process, if there's gong to be a change in this area, is not through the courts, but through the people."
Judge Martha Craig Daughtrey, who doggedly challenged Lindstrom during his 30-minute argument, shot back at him again.
"Do you have any idea how long it would have taken in the south if it wasn't for Loving v. Virginia?" she asked, referring to the 1967 U.S. Supreme Court case that overturned bans against interracial marriage.
(More: Judge grills Michigan lawyer on difference between banning gay marriage and interracial marriage)
The three-member appeals panel, which also includes Judge Deborah L. Cook, wasn't expected to issue a ruling Wednesday.