A three-judge panel of the U.S. Fifth Circuit Court of Appeals heard arguments in challenges to gay marriage bans in Texas, Louisiana and Mississippi on Friday, with LGBT activists saying the judges were poised to strike down the bans.
The judges – Patrick E. Higginbotham, Jerry E. Smith and James E. Graves Jr. – heard nearly three hours of arguments (listen to audio) and at least two, Graves and Higginbotham, were skeptical of Louisiana's ban. That prohibition was upheld by a federal judge; bans in Texas and Mississippi were thrown out.
Not only did Judge James Graves, an appointee of President Barack Obama, aim persistently skeptical questions at the state’s lawyer. So did Judge Patrick Higginbotham, a Ronald Reagan appointee, prodding him repeatedly about how the state could justify singling out same-sex couples for disparate treatment.
If the state’s rationale for defining marriage as a union between one man and one woman is to promote the rearing of children, Higginbotham asked more than once, then why allow incarcerated people with no chance of procreating to marry? Or, for that matter, sterile individuals or the aged?
Graves took the same line of questioning a step further, asking how marriages between gay and lesbian couples might actually “frustrate” the state’s attempt to make sure children are reared by married couples.
Still, while two votes — the third judge, Jerry Smith, seemed much less dubious of the state’s case — would be enough to overturn a lower court’s ruling in favor of the ban, court watchers could only speculate on Friday.
LGBT activists said it could be weeks before the panel issues a ruling in the cases. The track record of gay marriage bans in federal appellate courts is weak – four courts affirmed marriage equality, while one upheld a marriage ban, according to Freedom to Marry.
Chris Geidner, who covers LGBT legal issues for Buzzfeed, also noted the skepticism among the judges.
After three hours of arguments, the 5th Circuit Court of Appeals appeared poised to strike down bans on same-sex couples’ marriages in Louisiana, Mississippi, and Texas — joining all but one of the other appellate courts to consider that matter.
Judges Patrick Higginbotham and James Graves Jr. grew increasingly skeptical of the three states’ arguments as the morning wore on, with Judge Jerry Smith at times interjecting to slow down one of his colleagues’ lines of questioning in the courtroom.
Higginbotham also suggested that he found lacking arguments from state attorneys arguing to keep in place their marriage bans.
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 in court, 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.”
Notably, when Camilla Taylor, an attorney with Lambda Legal arguing against Louisiana’s marriage ban, delivered her initial arguments, Higginbotham 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 marriage prohibition.
Even Wolfson, president of Freedom to Marry, called on the court to deliver marriage equality to the three states.
“Once again an appellate court was presented with the lopsided case in favor of the freedom to marry, the opponents having no evidence and no significant legal justification to outweigh the powerful arguments for ending the exclusion of gay couples from marriage. Couples in Texas, Louisiana, and Mississippi have the same aspirations for love and commitment, the same needs for the legal protections and responsibilities marriage brings, and the same rights under the Constitution as couples in the vast majority of the country where marriage discrimination has been discarded.”
The Texas case, DeLeon v. Perry, includes two gay couples – Cleo DeLeon and Nicole Dimetman of Austin and Mark Phariss and Vic Holmes of Plano (photo). Ahead of the case on Thursday, Phariss and Dimetman expressed frustration over the state's refusal to allow them to marry their partners.
“I’ve loved him from the first minute I met him the entire past 17 years, and it is unfair that Texas won’t allow us to marry,” Phariss said.
Nicole Dimetman, who’s a plaintiff in the Texas case along with her spouse, Cleopatra De Leon, expressed a similar frustration, recalling her discovery upon the birth of their first child of the lack of protections afforded to her family.
“The fact that Texas doesn’t recognize our marriage is demeaning and humiliating not only to us, but to our children,” Dimetman said.
In 2005, Texas voters overwhelmingly approved an amendment to the state constitution banning gay marriages and civil unions. The measure also prevents the recognition of same-sex marriages performed in other states. Last February, U.S. District Judge Orlando Garcia struck down the Texas ban and ruled that it violates the U.S. Constitution's guarantee of equal protection under the law.
Texas appealed, with then-Attorney General Greg Abbott argued that the voters of Texas, not federal judges, should decided the fate of gay marriage.
[photo by Chris Johnson via]