January 9, 2015 at 3:54 pm EST | by Chris Johnson
Fifth Circuit seems likely to strike down marriage bans
Fifth Circuit Court of Appeals, New Orleans, same-sex marriage, gay marriage, marriage equality, gay news, Washington Blade

(Washington Blade photo by Chris Johnson)

NEW ORLEANS — After more than three hours of arguments on Friday, the U.S. Fifth Circuit Court of Appeals seemed poised to rule 2-1 against bans on same-sex marriage in Texas, Louisiana and Mississippi.

The three-judge panel hearing the challenges to marriage bans in these states consisted of U.S. Circuit Judge Patrick Higginbotham, a Reagan appointee; U.S. Circuit Judge Jerry Smith, another Reagan appointee; and U.S. Circuit Judge James Graves Jr., an Obama appointee.

Higginbotham, who’s considered a swing vote because he has reputation for being moderate on social issues, suggested he found arguments from state attorneys arguing in favor of marriage laws unsatisfactory.

At one point, Higginbotham talked about sexual orientation as an immutable characteristic and having no bearing on a person’s contribution to society. Higginbotham also asked Kyle Duncan, the special counsel representing the state of Louisiana, why sterile couples should be allowed to marry if the objective of the state’s ban on same-sex marriage is procreation.

Higginbotham recalled the recent decision against Wisconsin and Indiana’s marriage bans by U.S. Circuit Judge Richard Posner, saying the judge found such procreation arguments “ridiculous.”

At another point when the benefits of marriage came up, Higginbotham said the idea of that marriage is exclusively under the jurisdiction of the states “ignores the fact” that many benefits afforded to married couples are derived not from the state government, but the federal government.

Notably, when Camilla Taylor, an attorney with Lambda Legal arguing against Louisiana’s marriage ban, delivered her initial arguments, Higginbotham, as if he agreed with her position, asked her no questions until her time came for rebuttal. On the other hand, Higginbotham grilled Duncan throughout his arguments about his case in favor of Louisiana’s prohibition on gay nuptials.

Smith was the lone judge on the panel apparently leaning toward the idea that the court should uphold bans on same-sex marriage. In fact, his questioning seemed like he was advocating his colleagues on the bench to rule with him in favor of the laws.

Throughout the arguments, Smith made numerous references to the 1972 U.S. Supreme Court decision of Baker v. Nelson, a marriage-equality lawsuit the court refused to hear for lack of federal question. Also mentioned by Smith was judicial precedent that a law can survive scrutiny by the courts if it serves a rational basis, even if its an imperfect fit for the rationale.

“They might not be the best fit, but that may not means there’s no fit at all,” Smith said.

When Roberta Kaplan, the attorney representing same-sex couples in Mississippi, argued before the bench, Smith asked why one of the final lines in the Supreme Court decision against the Defense of Marriage Act was that the ruling only applies to existing same-sex marriages.

Smith said he finds it “unusual” that sentence would be included at the end of the decision, suggesting the DOMA ruling shouldn’t be applied to overturn state ban on same-sex marriage. “They very rarely do this,” Smith added.

In response to the question, Kaplan said the Supreme Court included line because, in her capacity as attorney who argued against the law, she only briefed against DOMA and not state laws at the time.

The remaining judge, Graves, suggested fears of what would happen if same-sex marriage advances aren’t enough of a rationale for the court to uphold the measures. Questioning Louisiana’s defense of its marriage ban, Graves asked whether passing a law out of such fears amounts to saying, “Because we don’t know, we should fear the unknown and therefore we should ban it.”

At one point, Smith said striking down a statute under rational-basis review would suggest the state acted irrationally by passing the law. Graves said the rational-basis test instead means a state must show a connection between a law and a legitimate rationale.

“I just don’t think finding a law unconstitutional is tantamount to saying the people who passed it are irrational,” Graves said.

After one reference to the Baker decision, Graves, who’s black, took a jab at recurring talk of the 1970’s case, saying it made him “nostalgic” for his afro and eight-track tapes.

The Fifth Circuit is under no time deadline to render a decision in the case. But if it acts quickly, the panel may make a decision before the Supreme Court decides on whether it’ll accept a marriage case to make a nationwide ruling on the issue. On the same day as the hearing, the Supreme Court held a conference in which it was set to discuss whether to take up a marriage case, but made no announcement on whether it had made a decision.

Each of the attorneys for the states had related — but distinct — arguments in the efforts to persuade the panel to uphold prohibitions on same-sex marriage.

Texas Solicitor General Jonathan Mitchell made the case that his state’s ban should survive judicial scrutiny because barring same-sex marriage helps to “subsidize and encourage” child-rearing in marriage by opposite-sex couples.

“Someone who wants to marry someone of the same sex is not likely going to be advancing the state’s interest of producing offspring,” Mitchell said.

Mitchell also disputed the notion that sexual orientation is an immutable trait, saying “there’s a dispute in the scientific literature.” When Higginbotham noted the American Psychological Association dropped consideration of homosexuality as a mental disorder in 1973, Mitchell denied the issue was final.

“There are articles that go both ways on this question,” Mitchell said.

In his defense of Mississippi’s marriage ban, Matheny said the government has an interest in “promoting stable relationships that can procreate.”

When Higginbotham quipped, “You don’t need an incentive to have sex,” eliciting laughter in the courtroom, Matheney conceded, “no.”

Coincidentally, at that moment, a baby child of an attendee in the courtroom began crying and was carried out by a person who was presumably a parent, prompting Matheney to say, “That child needs a stable family relationship.”

Arguing in favor of Louisiana’s ban, Duncan said the concept of same-sex marriage is a new one, suggesting his state may have wanted to wait to see the consequences before allowing it.

“Same-sex marriage is a brand-new perspective on marriage, one that has only been considered in the last decade by the states,” Duncan said.

But the attorneys for same-sex couples also had themes to which they consistently returned. Through her portion of the arguments, Kaplan maintained the case against the Mississippi’s ban on same-sex marriage boils down to a matter of equal treatment for gay people.

“You have colleagues on the federal bench who are gay,” Kaplan said. “I don’t think anyone would dispute their ability to decide cases just like everyone else.”

Noting the Supreme Court struck down DOMA after asserting Congress passed the law out of animus toward gay people, Kaplan said the same standard should be held to Mississippi’s marriage ban. According to Kaplan, the chair of Mississippi legislative committee who had jurisdiction over the measure said it was more symbol than substance.

“If the law is more symbol than substance, then what was the symbol being expressed other than disapproval of gay people?” Kaplan asked.

Arguing against Lousiana’s marriage ban, Taylor said the courts “are not only empowered, but obligated” to strike down laws that are unconstitutional, even if they enjoy majority support.

“The equal protection and due process clauses are not policies are not policies that can be preferred, they’re mandated,” Taylor said.

David McNeel Lane, Jr., an attorney with Akin Gump Strauss Haurer and Feld, said the ban on same-sex marriage in Texas creates a “caste system” that violates the Fourteenth Amendment.

Representing two Texas couples in the case — a lesbian and a gay male couple — Lane said when an expected child is born to the lesbian couple, one of the entries for the child’s parents on its birth certificate will be blank. When one of the partners in the gay male relationship passes on, Kane said, the name of his partner will be absent on the death certificate.

“These two examples are just emblematic of he inferior status that banning same-sex marriage results in,” Lane said.

Following the arguments, same-sex couples and their attorneys took part in a news conference outside the courthouse.

Nicole Dimetman, one of the plaintiffs in the Texas marriage case who’s expecting a second child with her spouse, Cleopatra de Leon, said she thinks the procreation arguments submitted by state attorneys were off base.

“Cleo and I got married right before we knew we were going to try to have kids,” Dimetman said. “I think they were only to speaking to one side of the argument in that case.”

At the end of her arguments before the Fifth Circuit, Taylor read from the U.S. Supreme Court’s 2003 decision in Lawrence v. Texas, which concludes, “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

“That’s what the plaintiffs have done this day,” Taylor added.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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