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Judges to hear arguments on gay marriage bans in Texas, Louisiana and Mississippi Southern states take last stand on gay marriage ban as judges hear arguments
(about 5 hours later)
Bans on gay marriage in three staunchly conservative southern states were to get a hearing in a federal appeals court Friday — the latest legal battle over an issue expected to be settled by the nation’s highest court. Three staunchly conservative Southern states were taking their last stands against same-sex marriage Friday before the US Supreme Court is expected to settle the issue once and for all.
A three-judge panel of the fifth US circuit court of appeals was scheduled to hear arguments from state attorneys from Texas, Louisiana and Mississippi — all of which passed bans on same-sex marriages — and from the lawyers arguing against the bans. Louisiana went first, telling a federal appellate panel that giving gays and lesbians marriage rights is so risky and unproven that states must be allowed to protect their citizens against it.
The cases represent what could be among the last argued in federal court before the US supreme court takes up the issue. The high court on Friday was eyeing the possibility of putting gay marriage on its calendar for this term. Same-sex marriage is “a novel perception” in terms of recorded history, said Louisiana’s special counsel, Kyle Duncan.
Gay marriage is now legal in 36 states and Washington, DC, as bans on gay and lesbian marriages have been struck down across the nation. Only 10 years of data has been gathered since Massachusetts became the first state to legalize same-sex marriages, he said – not enough to know the consequences if courts keep overturning state-imposed bans.
The appellate court in New Orleans took the highly unusual step of consolidating appeals from the three southern states into one session, which is expected to last about three hours Friday. “There are now 36 states and the district of Columbia that allow same-sex marriage and nothing has changed,” countered Camilla Taylor, a Lambda Legal Defense Fund attorney representing seven couples challenging Louisiana’s ban.
Federal district judges in two of the states struck down gay-marriage bans. In Louisiana last September, however, US district judge Martin Feldman bucked the trend, marking a rare loss for same-sex marriage supporters after more than 20 consecutive rulings overturning bans in other states. His ruling was the first to uphold a state ban after the US supreme court struck down part of the federal Defense of Marriage Act in 2013. Duncan was frequently interrupted and challenged by judges Patrick Higginbotham and James Graves, who seemed more skeptical of the state’s position than judge Jerry Smith.
“Feldman’s opinion most clearly state’s the opposing view,” said Kenneth Upton, a lawyer for Lambda Legal, a national gay-rights legal organization that will argue on behalf of seven Louisiana gay couples. “In that sense, he’s significant; his decision summarizes the arguments against us.” The three-judge panel of the 5th US Circuit Court of Appeals also was hearing arguments for and against marriage bans in Texas and Mississippi.
Texas voters approved a 2005 state constitutional amendment banning gay marriage, but that amendment was declared unconstitutional last February by U.S. District Judge Orlando Garcia. He allowed the ban to remain in effect pending appeals. The cases could be among the last to be heard in federal court before the nation’s highest court decides the issue on its merits. The justices were meeting privately Friday, eyeing the possibility of putting gay marriage on its calendar for this term.
In Mississippi in November, US district judge Carlton Reeves overturned the state’s definition of marriage as only between a man and a woman. Two lesbian couples and a gay-rights group, Campaign for Southern Equality, sued Mississippi over its anti-gay marriage law and constitutional amendment. With similar bans on gay and lesbian marriages being struck down around the nation, the appellate court in New Orleans took the highly unusual step of consolidating the three states’ appeals into a single session.
The arguments in the appellate court in New Orleans come on the heels of another defeat in federal court for gay-marriage supporters: In November, the sixth US circuit court of appeals in Cincinnati upheld anti-gay-marriage laws in Kentucky, Michigan, Ohio and Tennessee. Federal district judges ruled against the bans in Texas and Mississippi, but US District Judge Martin Feldman upheld Louisiana’s, a rare loss for gay rights advocates. More than 20 consecutive rulings had overturned bans in other states; Feldman’s was the first to uphold a state ban since the Supreme Court struck down part of the federal Defense of Marriage Act in 2013.
Conversely, four other appeals courts — in Chicago, Denver, San Francisco and Richmond, Virginia — have ruled in favor of gay and lesbian couples. Texas voters approved a constitutional amendment banning gay marriage in 2005. US District Judge Orlando Garcia ruled it unconstitutional, but allowed it to remain in effect pending appeals.
With a split among the appellate courts, intervention by the Supreme Court to settle gay marriage constitutionality has become very likely. Mississippi has both a law and a constitutional amendment banning gay marriage, but US District Judge Carlton Reeves overturned the state’s definition of marriage as only between a man and a woman after a legal challenge by two lesbian couples and a gay-rights group, Campaign for Southern Equality.
Between the appellate rulings and the Supreme Court’s decision in October to turn away state appeals, the number of states allowing same-sex couples to marry has risen to 36. In November, the 6th US Circuit Court of Appeals in Cincinnati upheld anti-gay-marriage laws in Kentucky, Michigan, Ohio and Tennessee. But four other appeals courts — based in Chicago, Denver, San Francisco and Richmond, Virginia — have ruled in favor of gay and lesbian couples, meaning 70 percent of the nation’s population now lives in states where same-sex marriages are recognized.
The split among the appellate courts makes an eventual intervention by the Supreme Court very likely.