John M. Becker

LISTEN: 5th Circuit Seems Poised to Rule for Marriage

Filed By John M. Becker | January 09, 2015 3:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: Fifth Circuit Court of Appeals, gay marriage, Kentucky, Louisiana, marriage equality, Michigan, Ohio, same-sex marriage, SCOTUS, Supreme Court, Tennessee

bigstock-Wedding-Rings-1182182.jpgOral arguments in the marriage cases at the Fifth Circuit Court of Appeals have concluded, and reporters on the ground say the three-judge panel is likely to vote in favor of marriage equality.

BuzzFeed's Chris Geidner reports:

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 the issue.

More than halfway through the morning's arguments, an exasperated Justin Matheny, the assistant attorney general in Mississippi charged with defending the state's ban, tried to change his tune during his rebuttal arguments.

It being clear that the three-judge panel was leaning against upholding the bans, Matheny told the judges that although the "trajectory" on marriage rights for same-sex couples is "undeniable," he argued that "it's not there yet."

Judge Patrick Higginbotham, born in Alabama almost eight decades ago and appointed to the appeals court by President Reagan more than three decades ago, spoke up. And though the older judge was hard to hear at times, he spoke up and spoke clearly when he responded to Matheny: "Those words, 'Will Mississippi change its mind?' have resonated in these halls before."

The Dallas Voice adds:

One state attorney talked about "irrational prejudice." Higginbotham asked the attorney what "rational prejudice" is. He questioned attorneys that this was a case of animus, even more dire than just irrational prejudice.

Patti Fink, who sat through oral arguments from Louisiana, Mississippi and Texas, said she struggled to sort out the twisted logic, but she said Higginbotham seemed to be having the same trouble.

Jonathan F. Mitchell, the attorney pleading the case for Gov. Rick Perry and the state of Texas, told the court, "Marriage is a subsidy." He argued that because marriage is a subsidy, same-sex marriage doesn't advance the state's interest. Judge James Graves compared it to a school lunch subsidy and the argument made little sense.

Kathleen Perrin of Equality Case Files and Chris Johnson of the Washington Blade, who were both in the courtroom, also predicted on Twitter that the panel will rule 2-1 in favor of marriage equality. This post will be updated when they've released their long-form analyses.

UPDATE: Here's Johnson (full analysis here at the Washington Blade):

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.

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.

Perrin noted on Twitter that Judge Graves wasn't having any of Smith's Baker nonsense:

Audio from today's oral arguments are posted after the jump, via Freedom to Marry. (Louisiana is currently posted; the others will soon follow.) A decision from the Fifth Circuit is not expected for several weeks, although one never knows: the Sixth Circuit took three months to issue its ruling, while the Seventh took just one week.

In other marriage equality news, the Supreme Court did not include any marriage equality cases on its order list this morning, so the wait continues. This was not unexpected -- the Court rarely grants review the first time a petition is listed for consideration, and the justices have until the end of the month to take action in order to hear a case (or cases) this term.


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