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Gay marriage proponents claim 'right side of history'

Richard Wolf
USA TODAY
Susan Horowitz, left, and Judy Valenti, right, hug a friend in Ferndale, Mich., on March 21, 2014, after a federal judge strikes down Michigan's ban on gay marriage.

WASHINGTON — Lawyers representing same-sex marriage plaintiffs from four Midwest states filed their initial briefs with the Supreme Court on Friday, claiming to be on "the right side of history."

The lengthy documents reiterated all the major arguments that have been made by gay and lesbian couples in dozens of mostly victorious cases since the high court ruled in 2013 against the federal Defense of Marriage Act.

There were appeals based on the 14th Amendment's guarantee of equal protection and due process, claims that marriage is a "fundamental right" of all Americans, and contentions that bans in Michigan, Ohio, Kentucky and Tennessee discriminate on the basis of both sex and sexual orientation.

In addition, the briefs attempted to knock down arguments used by the states and gay marriage opponents: that upholding state bans would preserve states' rights, centuries of tradition, incentives for procreation and optimal child-rearing.

"These are the briefs that represent the right side of history," said Daniel Canon, representing Kentucky's plaintiffs.

Sophy Jesty, left, and Valeria Tanco, of Knoxville, Tenn., speak outside the Davidson County courthouse in Nashville. The couple, married in New York in 2011, were part of a group that filed a lawsuit to force Tennessee to recognize same-sex marriages from other states where it's legal.

Mary Bonauto, the lawyer who won the nation's first same-sex marriage case in Massachusetts 12 years ago and is now helping in the Michigan case, called it "an incredibly powerful set of briefs." But she issued a note of caution.

"We recognize that it's the court here that's the decider," Bonauto said.

The briefs also include a few direct appeals to the key jurist in the case — Justice Anthony Kennedy, who wrote the 5-4 decision two years ago in U.S. v. Windsor and is widely seen as likely to play the most crucial role again.

The Supreme Court agreed to hear all four cases after the U.S. Court of Appeals for the 6th Circuit last fall became the first appeals court to uphold state bans, creating a rift among appellate courts. Previously, the 4th, 7th and 10th circuits had struck down marriage bans in five states, and the justices refused to consider the states' appeals.

Jonathon Infante-May and his husband, Joseph Infante-May, embrace after getting married during a ceremony at the Broward County Courthouse on Jan. 6 in Fort Lauderdale, Fla.

In Michigan and Kentucky, gay and lesbian couples are fighting for the right to marry. The cases from Ohio and Tennessee, as well as Kentucky, argue for the right of same-sex couples to have their existing marriages from other states recognized.

Thirty-seven states and the District of Columbia now allow gays and lesbians to marry, though in many cases state officials remain opposed. If the high court refuses to strike down the four bans in question, many of those other states could file new lawsuits seeking to reimpose bans on same-sex marriage.

Friday's submissions were the first in what will be a series of briefs coming to the court. Next Friday, scores of "friend of the court" briefs from gay marriage proponents are due. The lawyers for the plaintiffs have until March 17 to decide who will deliver oral arguments in court.

The state's briefs are due next month. Oral argument in the cases will be the week of April 27, and a decision is expected before the end of June.

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